# Legal Q: I "exclusively" agreed to arbitration; is that something you can agree to? **URL:** \ **Category:** Factual Questions\ **Created:** [April 18, 2005, 2:35pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892 "2005-04-18T14:35:21Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [April 18, 2005, 2:35pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/1 "2005-04-18T14:35:21Z")
Rereading my employee manual company handbook thingie last night I came upon a section that discussed legal matters, and it said that by working and continuing to work at my company I agree to solve matters **exclusively** through arbitration and not go to civil court over anything. Is that binding? Can I really waive my right to the judicial system itself in order to secure employment? A passage here makes me think otherwise: “only the arbitrator, and not a judge nor a jury, will decide the dispute.” I understand one can waive the right to a jury during any particular proceeding, but _in general_ as a condition of employment? —That doesn’t seem possible to me. Please understand I have no problem with arbitration, it should be the first route taken if feasible, and I fully believe any lawyer would recognize fair arbitration if it stared her down, rightly removing strain from the civil court system. This is not meant to say my company is treating me unfairly or anything of the sort. I am not being cynical about anyone’s intentions. It is really a question of whether the company is using this to avoid civil court because people will begin the arbitration process thinking they have no other choice, or whether they can really force my hand like this as a condition of employment. OK, maybe a little cynical about intentions. (I do like the company I work for, though.) But it seems, intuitively, that that can’t be a binding contract. Is it? (Wouldn’t be the first time my intuition was way off!) Section 2 of the Federal Arbitration Act says: > [@Section 2. Validity](#): > > A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. Am I reading this as, “Valid as any other contract,” or, “Valid as any other contract _given a dispute realized at the time of agreeing to arbitration_?” ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [April 18, 2005, 2:53pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/2 "2005-04-18T14:53:59Z")
> [@erislover](#): > > Section 2 of the Federal Arbitration Act says:Am I reading this as, “Valid as any other contract,” or, “Valid as any other contract _given a dispute realized at the time of agreeing to arbitration_?” As this [article](http://www.dwt.com/related_links/adv_bulletins/AlertSpring01.htm) indicates, it varies to some extent from state to state. ---
**Author:** ![TJVM](https://avatars.discourse-cdn.com/v4/letter/t/b38774/32.png) [@TJVM](https://boards.straightdope.com/u/TJVM)\ **Post date:** [April 18, 2005, 3:01pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/3 "2005-04-18T15:01:05Z")
In general, yes, you can give up your right to go to court as a condition of employment. Agreements to arbitrate are (again in general) as enforceable as other contracts. Personally, I think this shouldn’t be the case – because companies often select arbitration procedures that favor them over their employees – but that’s the law. Note that many states have their own laws on arbitration. However, many such provisions have been held to be pre-empted by the federal arbitration statute, which is very pro-arbitration. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [April 18, 2005, 3:03pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/4 "2005-04-18T15:03:20Z")
> [@erislover](#): > > It is really a question of whether the company is using this to avoid civil court because people will begin the arbitration process thinking they have no other choice, or whether they can really force my hand like this as a condition of employment. The short answer is that they can in fact force you to agree to arbitration. Virtually all Collective Bargaining Agreements contain an arbitration clause, BTW. The real question for you, is the one you ask elsewhere: [/quote] But it seems, intuitively, that that can’t be a binding contract. Is it? (Wouldn’t be the first time my intuition was way off!) [/QUOTE] You haven’t provided nearly enough information here. What state are you in, for starters? Did you sign anything during the employment process? Did your employer require you to sign off for the employee handbook? Are there disclaimers in the handbook saying that it is not a contract? (Many handbook include such language.) ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [April 18, 2005, 3:22pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/5 "2005-04-18T15:22:38Z")
Hmm. [http://www.mass.gov/legis/laws/mgl/gl-251-toc.htm](http://www.mass.gov/legis/laws/mgl/gl-251-toc.htm) > [@GENERAL LAWS OF MASSACHUSETTS part III title IV Chapter 251 section 1](#): > > A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties shall be valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. This seems to bolster the idea that it only applies to agreements signed after the realization of a dispute, not prior to it. This isn’t just my intuition being off now, it is the normal reading of English that is off if one can submit to arbitration in general, prior to any dispute. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [April 18, 2005, 3:26pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/6 "2005-04-18T15:26:41Z")
Yes, **Gfactor** , there was a signed agreement to the arbitration policy at time of hiring. ---
**Author:** ![Banger](https://avatars.discourse-cdn.com/v4/letter/b/8491ac/32.png) [@Banger](https://boards.straightdope.com/u/Banger)\ **Post date:** [April 18, 2005, 3:53pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/7 "2005-04-18T15:53:45Z")
> [@erislover](#): > > Hmm. [http://www.mass.gov/legis/laws/mgl/gl-251-toc.htm](http://www.mass.gov/legis/laws/mgl/gl-251-toc.htm) > This seems to bolster the idea that it only applies to agreements signed after the realization of a dispute, not prior to it. This isn’t just my intuition being off now, it is the normal reading of English that is off if one can submit to arbitration in general, prior to any dispute. I’m not sure if your employment would fall under the section cited (as it appears to relate to commercial transactions and not employment contracts), but if it did, wouldn’t the part relating to “a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties” be in accordance with your contract? ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [April 18, 2005, 3:57pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/8 "2005-04-18T15:57:25Z")
Ah, commercial disputes. :smack: Uh, no, that surely wouldn’t apply. I notice that’s the same context of the quote in my OP, too. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [April 18, 2005, 3:59pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/9 "2005-04-18T15:59:53Z")
> [@erislover](#): > > Hmm. [http://www.mass.gov/legis/laws/mgl/gl-251-toc.htm](http://www.mass.gov/legis/laws/mgl/gl-251-toc.htm) > This seems to bolster the idea that it only applies to agreements signed after the realization of a dispute, not prior to it. This isn’t just my intuition being off now, it is the normal reading of English that is off if one can submit to arbitration in general, prior to any dispute. Yes. You definitely can agree to arbitrate disputes before they arise. Here is the language in your state statute. > [@](#): > > or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties shall be valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. And here it is in the Federal Arbitration Act. > [@](#): > > settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, The idea is that as long as you are entering into a contract, you can specify the way that disputes get resolved. That’s always been an accepted idea in the law. The more controversial part, is that in the employment context, statutory and constitutional claims can also be included in an arbitration clause. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [April 18, 2005, 4:05pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/10 "2005-04-18T16:05:09Z")
> [@erislover](#): > > Ah, commercial disputes. :smack: Uh, no, that surely wouldn’t apply. I notice that’s the same context of the quote in my OP, too. The Federal Arbitration Act has been interpretted by the United States Supreme Court to cover employment disputes. Moreover, the title of a statute is generally held not to limit the statute’s application. _Castillo v. United States_, 530 U. S. 120, 125 (2000) The text of the statute pretty clearly covers employment contracts. ---
**Author:** ![Banger](https://avatars.discourse-cdn.com/v4/letter/b/8491ac/32.png) [@Banger](https://boards.straightdope.com/u/Banger)\ **Post date:** [April 18, 2005, 4:07pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/11 "2005-04-18T16:07:23Z")
This may be the applicable section, insofar as it relates to collective bargaining agreements between employers and employee organizations… > [@](#): > > GLM Section 150C: > > Section 1. A written agreement or a provision in a written agreement between a labor organization or organizations, as defined in subsection (5) of section two of chapter one hundred and fifty A, and an employer or employers or association or group of employers to submit to arbitration any existing controversy _or any controversy thereafter arising between parties to the agreement,_ including but not restricted to any controversy dealing with rates of pay, wages, hours or other terms and conditions of employment of any employee or employees, shall be valid, enforceable and irrevocable, except as otherwise provided by law or in equity for the revocation of any contract. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [April 18, 2005, 4:28pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/12 "2005-04-18T16:28:00Z")
Thanks, everyone, asked and well-answered. ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [April 18, 2005, 5:12pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/13 "2005-04-18T17:12:27Z")
How does one challenge the constitutionality of something by going to arbitration? Suppose I refuse to pay the evil union a piece of my salary – if there’s an arbitration agreement, then they can only drag me to arbitration, which interprets existing law rather than their constitutionality. Or is that not the case? How about once I’m fired because the evil union tells the company that they must fire me because I didn’t give them my money? Again, if I can only go to arbitration, I can’t challenge the legitimacy of the law that caused me to get fired, right? Just an example, by the way. ---
**Author:** ![Joey\_P](https://avatars.discourse-cdn.com/v4/letter/j/919ad9/32.png) [@Joey\_P](https://boards.straightdope.com/u/Joey_P)\ **Post date:** [April 18, 2005, 5:27pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/14 "2005-04-18T17:27:44Z")
“…it said that by working and continuing to work at my company…” With wording like this, if you wanted to go to court over something, couldn’t you just quit? If you quit you wouldn’t be continuing to work at the company and therefore not be restricted to arbitration. Of course IANAL. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [April 18, 2005, 5:46pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/15 "2005-04-18T17:46:33Z")
It is covered under any dispute that arises while I am employed. My working there after the dispute is not an issue, apparently. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [April 18, 2005, 6:27pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/16 "2005-04-18T18:27:24Z")
> [@Balthisar](#): > > How does one challenge the constitutionality of something by going to arbitration? Suppose I refuse to pay the evil union a piece of my salary – if there’s an arbitration agreement, then they can only drag me to arbitration, which interprets existing law rather than their constitutionality. Or is that not the case? How about once I’m fired because the evil union tells the company that they must fire me because I didn’t give them my money? Again, if I can only go to arbitration, I can’t challenge the legitimacy of the law that caused me to get fired, right? > > Just an example, by the way. Actually it gets a lot more complicated. First, you don’t have an employment agreement with your union. One argument made by employers who are trying to avoid unions is that a union can force you to attend meetings and fine you if you don’t attend. Clever employers will show court judgments against employees enforcing fines. So in your example, you could argue constitutional points in court. Second, the short answer is that if your employer is a private employer. You probably don’t have any constitutional claims against it. The constitution only regulates state action. [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/stateaction.htm](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/stateaction.htm) Third, under some circumstances you might be able to litigate constitutional claims despite an arbitration clause. Here is a case for those who must know. > **[FindLaw's United States Second Circuit case and opinions.](https://caselaw.findlaw.com/us-2nd-circuit/1302277.html)** > > FindLaw's searchable database of United States Second Circuit decisions since ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [April 18, 2005, 6:30pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/17 "2005-04-18T18:30:56Z")
Here is the most recent Supreme Court case on mandatory arbitration clauses in employment agreements and their effect on civil rights claims. > **[FindLaw's United States Supreme Court case and opinions.](https://caselaw.findlaw.com/us-supreme-court/534/279.html)** > > FindLaw's searchable database of United States Supreme Court decisions since ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [April 18, 2005, 7:09pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/18 "2005-04-18T19:09:39Z")
> [@Joey P](#): > > “…it said that by working and continuing to work at my company…” > > With wording like this, if you wanted to go to court over something, couldn’t you just quit? > If you quit you wouldn’t be continuing to work at the company and therefore not be restricted to arbitration. Of course IANAL. No, you’re misunderstanding the point. The “continuing employment” comment was addressed to the need for the required consideration to form a contract. Generally, contracts have to have consideration flowing from each party to the other party. In most states, continued employment is held to be sufficient consideration to the employee for a new job requirement or term. Once there’s adequate consideration, you can’t undo that by quitting. Your contractual obligations still exist. (Similarly, if the consideration was $50 instead, you couldn’t avoid the contract term by saying that you spent the $50.) Usual Disclaimer. Although IAAL, I;m not your lawyer and you aren’t my client. I’m probably not even licensed in your state. This is general information and not reliable legal advice. See a lawyer licensed in your state for that. ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [April 18, 2005, 10:09pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/19 "2005-04-18T22:09:15Z")
Odd coincidence: An hour ago, I came across the Illinois case of _Melena v. Anheuser-Busch_, 816 N.E. 2d 826 (5th Dist. 2004), in which the Illinois Appellate Court struck down a mandatory arbitration clause that the defendant had required plaintiff (an existing employee at the time) to sign. It held that, under the circumstances, the employee’s waiver of its right to have her claims litigated in court was not knowing or voluntary. I was somewhat surprised by this decision. I have not done further research, but I would not be surprised if this court’s opinion is overturned when and if the issue reaches the Illinois Supreme Court. ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [April 18, 2005, 10:17pm UTC](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892/20 "2005-04-18T22:17:40Z")
"… **her** right to have her claims… [Next page](https://boards.straightdope.com/t/legal-q-i-exclusively-agreed-to-arbitration-is-that-something-you-can-agree-to/299892.md?page=2)