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Best Ohio Wrongful Termination Lawyer Reply: Should I ask for my employee file if I am fired? What is an arbitration agreement? Can my employer prevent me from suing it for race discrimination or sexual harassment?

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Many employees show up at our office after being wrongfully fired for gender, religion, or disability discrimination looking to sue their employer. Some employees show up saying, “I was fired today for…” taking FMLA leave or after filing a Workers’ Compensation claim. Maybe its pregnancy discrimination or your boss’s refusal to pay overtime. But, most come with visions of filing a lawsuit and taking their boss, manager, supervisor or employer to court. These employees envision judges in black robes and jurors sitting in the jury box listening to the witnesses on the witness stand. This is what we have seen our lawyers do on TV.

But, there can be problem getting to court and juries if your employer had you sign an arbitration agreement.

As our employment attorneys have previously blogged about, courts have shown a preference for enforcing arbitration agreements. (See The United States Supreme Court Re-Affirms Its Preference for Arbitration In Employment Discrimination Cases.; How Do I Get Out Of My Employer’s Arbitration Clause?; Non-Competition Agreement: The Arbitrator Has The Power!). An arbitration agreement restricts both the employer and employee’s right to file a lawsuit in a court of law, in most circumstances, so that if there are any disputes between an employee and his or her employer, those disputes must go to binding arbitration. The United States Supreme Court‘s preference towards arbitration, arguably, generates from the Federal Arbitration Act, and the Court’s interpretation of that act as a national policy favoring arbitration.

I was fired today by my racist manager. Do I have a claim for gender discrimination? How do I find the best lawyer to sue my company for race discrimination and overtime violation? Can my boss make me sign an arbitration agreement?

Most employees that come to us do not even remember signing an arbitration agreement. Arbitration agreements are typically not pointed out to the employee and soon forgotten. It may be a standalone arbitration agreement or it may just be an arbitration provision buried in your employment contract or employee handbook. There may be a clause in the application that the employee filled out, or a single paper in a huge stack of paperwork given to the employee to sign on their first day. Many arbitration agreements even shorten the time period the employee has to bring a claim against the employer. It is imperative that you call the right attorney as soon as you are terminated, otherwise it may be too late to sue your former employer.

Recently, the Missouri Court of Appeals, Western Division, examined an arbitration agreement with a delegation provision. In Dotson v. Dillard’s, Inc., the arbitration agreement contained a delegation provision, which meant that the arbitrator would decide whether the dispute was subject to arbitration. Typically, if one party believes that they are not subject to arbitration, they file a lawsuit and let a judge decide. However, if there is a delegation provision, that decision is up to the arbitrator, not the judge. The employee, Laris Dotson, sued Dillards and argued that the arbitration agreement was not enforceable. The trail court agreed with Dotson, and said that the arbitration agreement was not enforceable because of a defect in contract formation. Dillards appealed, stating that since there was a delegation provision, it was up to the arbitrator to determine whether the arbitration agreement was enforceable. Citing the United States Supreme Court previous decision on this issue in Rent-A Center, West, Inc. v. Jackson, the Missouri Court of Appeals held that:

a delegation provision is nothing more than a “`written provision . . . to settle by arbitration a controversy.’“ Id. (quoting 9 U.S.C. § 2). And it is to be treated like any other arbitration agreement under the FAA. Id. at 70, 130 S.Ct. 2772. Thus, relying on the prior case law analyzing challenges to an arbitration agreement within a larger contract, the Court held that, “unless [a party] challenge[s] the delegation provision specifically, [courts] must treat it as valid under § 2 [of the FAA], and must enforce it under §§ 3 and 4, leaving any challenge to the validity of the [a]greement as a whole for the arbitrator.” Id. at 72, 130 S.Ct. 2772.

Accordingly, when a party seeking to compel arbitration relies upon a delegation provision, the court must enforce that provision if it clearly and unmistakably provides authority for an arbitrator to determine arbitrability of the issues, AT & T Techs., Inc., 475 U.S. at 649, 106 S.Ct. 1415, unless the opposing party directly challenges the enforceability of the delegation provision, itself. Rent-A-Center, 561 U.S. at 71-72, 130 S.Ct. 2772.

Since Dotson never raised a challenge to the delegation provision itself, even though he called the validity of and enforceability of the arbitration agreement as a whole, the enforceability of the arbitration agreement should be decided by the arbitrator. Thus, since Dotson did not challenge the enforceability of the delegation provision, the only issue the court could decide was whether the delegation provision clearly and unmistakably delegated authority to the arbitrator to determine issues of arbitrability. The test is whether the provision “gives an arbitrator the authority to resolve disputes relating to the ‘enforceability,’ ‘validity,’ or ‘applicability’,” Dotson argued that the delegation provision gave the arbitrator concurrent authority to determine arbitrability, but did not divest the trial court of its authority to determine the same. The Court of Appeals did not buy Dotson’s argument, noting that Dotson’s interpretation added an extra requirement to the “clear and unmistakable” test. The court ultimately found that the arbitration agreement contained a delegation provision that clearly and unmistakably provided authority to the arbitrator to determine the arbitrability of the issues, and because Dotson waived any specific challenges he may have had to the enforceability of the delegation provision, and dismissed Dotson’s case and compelled arbitration:

In the absence of a challenge to the enforceability of a delegation provision, the only question for a court faced with a motion to compel arbitration is whether the delegation provision clearly and unmistakably delegated authority to the arbitrator to determine issues of arbitrability. First Options, 514 U.S. at 944, 115 S.Ct. 1920; Rent-A-Center, 561 U.S. at 70 n.1, 130 S.Ct. 2772. As mentioned above, this threshold test is met if the provision “gives an arbitrator the authority to resolve disputes relating to the `enforceability,’ `validity,’ or `applicability’,” W.L. Doggett LLC, 92 F.Supp.3d at 597, as well as “formation” of the agreement. Baker, 450 S.W.3d at 774. The provision here plainly gives the arbitrator authority to determine arbitrability of the issues in stating that “Any dispute over a Legal Claim concerning this Agreement—the way it was formed, its applicability, meaning, enforcement, or any claim that all or part of this Agreement is void or voidable—is subject to arbitration under this Agreement.”

If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.


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