Forced arbitration effectively lets employers violate employment laws with impunity. Also known as mandatory binding arbitration, forced arbitration is a common clause in employment contracts which restricts disputes to employer-friendly hearings conducted by a private arbitration company. No equitable employment relationship is possible under the specter of forced arbitration.

Note: I’m not a lawyer, I write software. Hire a lawyer if you need legal advice.

What if…

You or your partner is expecting a child. Excited, you announce the news to your coworkers! Soon afterward, you are denied a promised promotion on the basis that you’ll soon be taking [mp]aternity leave. Your employer has violated the Pregnancy Discrimination Act.
You develop a medical condition which requires you to take medication during your workday. Taking your medication means you have to leave your desk briefly each day, but this doesn’t impact your productivity. Your boss confronts you about your routine of leaving your desk to take your medication. Despite your explanation, your boss fires you. You have been wrongfully terminated.
You develop a repetitive stress injury while working. You file a worker’s compensation claim. On receiving your claim, your employer cuts your salary or fires you. In many US states, you have been illegally retaliated against.

Under normal circumstances, in each of these scenarios you could recover damages in court from your employer for their illegal actions. If they violate the law against your coworkers as well, you could all take your employer to court together in a class-action lawsuit.

A perpetual get out of jail free card

Forced arbitration removes your right to take your employer to court. Forced arbitration clauses often also prohibit class-action lawsuits. If you had signed an arbitration agreement in each of the above examples, you wouldn’t be able to sue your employer in court.

Instead, your only option would be an arbitration hearing. Arbitration is conducted in private by a company selected by your employer. Just a sample of reasons why the deck is stacked against you as an employee:

The hearing rules are set by the arbitration company, not by the law. You may not be able to present the needed evidence or bring the needed experts.
Arbitration outcomes are final and can’t be appealed.
Arbitration often requires travel to the venue your employer has chosen, instead of where you live. You may have to pay out of pocket for travel expenses just to get your case heard.
Arbitrators often rule in favor of employers, because they know they won’t continue to be selected to arbitrate cases if they rule for employees.
Arbitration outcomes don’t have to be based on any legal merits.

Yes, you read that right. Arbitration “rulings” don’t have to be based on the legal merits of a dispute. With forced arbitration, your employer can break the law, force you into arbitration, and obtain a ruling against you regardless of any facts.

The unfairness of arbitration is well documented:

The inherent unfairness of forced arbitration causes employees who might otherwise have a legal case against their employer to simply do nothing. In such cases, the employer faces no consequences for their illegal acts and has no incentive to stop any illegal practices. This is called a chilling effect in relation to employee rights.

Most employees don’t want to sue their employers, but it’s crucial for employees to retain the right to sue their employers. Fear of (the cost of) lawsuits is what motivates employers to follow the law. When employers face little to no consequences for violating the law, they have no incentive to obey the law in the first place.

Even if your employer doesn’t violate any laws, a requirement of forced arbitration looms over the entire employment relationship. Your employer has declared from the outset that they won’t respect your rights if inconvenient (read: more expensive) for them.

Hiding in plain sight

Forced arbitration clauses are often placed at the end of contracts / employment agreements. It’s important to read and understand any employment contract in full before signing as it can curtail your rights both at and outside of work.

Here’s some arbitration language that’s been presented to me in two separate job offers:

You and [employer] shall submit to mandatory and exclusive binding arbitration any and all controversies or claims arising from, or relating to, your employment with [employer] and/or the termination of your employment that are based upon any federal, state or local ordinance, statute, regulation or constitutional provision.

Through this arbitration agreement (“Agreement”), you and the Company agree that all disputes between you and the Company (including its subsidiaries, affiliates, successors, partners, employees, officers, directors, insurers, agents, investors, contractors, and vendors) must be submitted for binding arbitration with JAMS [arbitration company] before a single, neutral arbitrator in San Francisco County.

[…]

THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO CLAIMS SUBJECT TO ARBITRATION UNDER THIS AGREEMENT.

The brevity of these paragraphs conceals the severity of their effects. An employee under these terms can’t take their employer to court if the employer violates any law whatsoever.

As of 2017, an estimated over 60 million American workers are bound by forced arbitration clauses in their employment agreements. These numbers are only increasing.

Corporate gaslighting

Employers routinely claim:

Arbitration is fair. Data shows arbitration cases overwhelmingly favor employers, and that financial awards are lower than outcomes in court cases. Arbitrators often rule for the employer to ensure repeat business. Most importantly, arbitrators are not required to rule based on the legal merits of a case at all!
Arbitration is faster than litigation. The same data shows arbitration cases often take over a year. Regardless, what good is a speedy trial if the trial itself is a sham?

Employers understand how forced arbitration benefits them financially. What they won’t admit is these cost savings come from their ability to effectively violate employment laws at your expense.

Your rights, à la carte

Some companies exempt sexual harassment claims from their forced arbitration clauses. After an employee walkout, Google and several other tech companies removed sexual harassment from their forced arbitration clauses. Just days ago, forced arbitration for sexual harassment cases became illegal under federal law. This is better than forcing sexual harassment claims into arbitration, but restoring access to a specific legal protection is not enough.

Employment laws discourage and punish all sorts of illegal behavior by employers. With forced arbitration, companies have exempted themselves from employment laws and are only restoring access to specific rights and protections when compelled by collective employee action and/or bad PR.

As employees, the law gives us legal rights. Employers use forced arbitration to deprive us of those rights by stacking the deck in their favor in all employment-related legal matters. We shouldn’t have to fight to restore our existing legal rights one piece at a time.

Hiring is hard when employees aren’t valued

Software engineers and other tech professionals have been in high demand for years, and the job market is only getting hotter. Tech companies routinely whine about the difficulty of hiring and retaining talent.

Despite this, many companies deny us access to our basic employment rights through forced arbitration. If you are an employer that requires forced arbitration, you are demonstrating you don’t value your employees. Tech workers have choices, and this is a great way to make candidates choose someone else.

Like most software engineers, I receive constant messages from recruiters. From the first contact, I’m up front about my refusal to sign a forced arbitration clause for a job. I’ve turned down offers after completing full interview rounds because the company wasn’t willing to remove their forced arbitration clause.

I won’t work for any company that demonstrates I’m not valued even before I sign an offer.