Forced arbitration is bad for employees. It is bad because it requires employees to waive their right to sue in court and in doing so denies employees the opportunity to have legal disputes with their employer resolved by a jury. This means that laws prohibiting workplace discrimination and retaliation are not enforceable in a court of law where forced arbitration exists. Rather, forced arbitration requires employees to submit their disputes to a privately-retained arbitrator, a person who often earns their living in whole or in part from handling claims brought against employers. This means that employers are their repeat customers. Furthermore, arbitrators aren’t required to take the law and legal precedent into account in making their decisions. There is no appeal or public review of decisions to ensure the arbitrator made a correct decision. Moreover, employers like arbitration because arbitrators tend to either rule in their favor or render awards favoring employees at monetary values typically much lower than an employee is likely obtain from a jury.
Although our New Jersey Supreme Court has declared that courts must treat and enforce arbitration agreements like all other contracts, to be enforceable it must be shown that the employee who entered into an arbitration agreement understood they were agreeing to waive their statutory right to sue for discrimination and retaliation in court of law. Atalese v. United States Legal Services Group, L.P., 219 N.J. 430, 441 (2011). Because arbitration results in a waiver of the right of an employee to pursue their claims in court, “courts take particular care in assuring the knowing assent of both parties to arbitrate, and a clear mutual understanding of the ramifications of that assent.” Atalese, 219 N.J. at 442-43. The Appellate Division of the New Jersey Superior Court recently rejected the validity of an arbitration agreement in Flanzman v. Jenny Craig, Inc., 2018 N.J. Super. LEXIS 156 * (App. Div. decided Nov. 13, 2018), because the employee there did not understand she was waiving her right to a jury trial by signing the agreement.
At the time her employment was terminated, the Plaintiff in Flanzman was 82 years old and had worked for Jenny Craig as a weight loss consultant for some 26 years. Jenny Craig gradually reduced the Plaintiff’s work hours to only three hours per week eventually resulting in her job termination. The Plaintiff filed a lawsuit alleging, among others, age discrimination. Jenny Craig responded by filing a motion to compel arbitration relying on an arbitration agreement allegedly signed by the Plaintiff in 2011, twenty years after she was hired. The appeal required the Appellate Division to decide whether to invalidate the arbitration agreement because it failed to identify any arbitration forum and any process for conducting the arbitration. As the appellate court explained: