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Employment Contracts

Ensure arbitration meets NLRB standards

For several years, the NLRB has argued that some arbitration agreements violate the NLRA because they limit employees’ right to engage in concerted activity to improve working conditions. Now, the NLRB has eased its criticism of one popular arbitration condition: Mandatory arbitration.

Court: NY’s ban on mandatory arbitration of harassment claims violates federal law

Last year, new legislation made it unlawful for employers to force employees to sign arbitration agreements covering for sexual harassment claims. Now a federal court considering such an agreement has concluded the law violates an existing federal law.

Older worker must sign severance agreement in order to claim OWBPA violation

Under the Older Workers Benefit Protection Act, employers are required to follow certain rules before getting employees to promise not to sue in exchange for receiving a severance payment. But merely presenting a severance offer that technically doesn’t meet those standards isn’t a separate legal wrong, as a recent case shows.

Work with IT to capture agreement to arbitrate

Now that most hiring is handled electronically, it’s easier than ever to collect an employee’s acknowledgment that he agreed to the terms of an arbitration agreement.

Ensure each worker receives your arbitration agreement

To bind workers to the terms of an arbitration agreement, employers must prove those workers actually received a copy.

Have attorney draft arbitration agreement

If you’re interested in using arbitration as an alternative to costly and drawn-out litigation, you may be tempted to use a general, restrictive arbitration agreement for all states in which you have operations. That can be a big mistake if you also have employees in California.

Make returning worker sign arbitration agreement again

If you use an arbitration agreement, and a worker quits only to be rehired later, make sure she signs and dates a fresh copy of the agreement. Otherwise, the earlier resignation will have ended the agreement.

Court: Unsigned arbitration agreement enforceable

A California appeals court has upheld an arbitration agreement presented to employees as a take-it-or-leave-it proposition that implied their acceptance even if they didn’t sign it.

Take proactive steps to assert at-will status

A former employee who contests a termination in court may overcome the at-will presumption by presenting some evidence that there was either a specific written agreement spelling out employment terms or an implied agreement that employment would continue for an indefinite period of time unless there was some good cause for termination.

Beware ‘back-door’ bias claims under Section 1981

A growing number of employees are taking a back-door approach to filing racial bias suits, one with the potential for a bigger windfall.