An internal resolution mechanism for pre-refereed appeals can help establish that the arbitration agreement is materially unacceptable. Make sure your client`s consent contains arbitration conditions, for example. B the requirement that your client „provide“ the details of his claim to the other party prior to arbitration. „The applicant, who submits to an employer-controlled dispute resolution mechanism (i.e., a mechanism without a neutral mediator), suggests that the defendant would have „free access“ to the applicant`s case, which would give him an advantage if the applicant subsequently sought arbitration.“ (Nyulassy, supra, 120 Cal.App.4. on 1283.) Conversely, the AAA`s Commercial Fee Schedule, which applies to disputes arising from „individually negotiated employment contracts and contracts,“ authorizes the awarding of AAA bargaining rights to each party. This means that if your client has negotiated part of his employment contract (for example. B salary or leave period), your client`s litigation could trigger the AAA`s „individually negotiated employment contract“ cost structure, even if the balance of your client`s contract involves an arbitration agreement promulgated by the employer. Arbitration agreements are treated like other agreements The first question to be answered is whether the arbitration provision covers insurmountable public rights (usually statutory rights, such as minimum wage, overtime and discrimination rights) or wailable private rights (such as confidentiality agreements and ownership of labour products created during employment). Both types of claims require that an arbitration decision not be unacceptable (see below). In addition, the arbitration decision must include four additional elements for non-negotiable public rights claims to be considered enforceable. In the context of employment contracts, arbitration agreements are almost always presented in a way of „taking or leaving“.
Therefore, it is almost certain that a provision of arbitration in an employment contract is considered procedurally unacceptable. The only exception is that the arbitration provision is an optional provision of the contract that the worker can cancel if the contract is signed. If an arbitration procedure is procedurally unacceptable, the question arises as to whether the arbitration decision is also materially unacceptable. The most effective remedy against an employer`s petition to impose arbitration is therefore to prove that the applicant did not agree to arbitrate at all.