Sexual harassment and sexual assault often thrive in silence. Silence around this kind of misconduct is exactly what some employers contract for in mandatory arbitration agreements with their employees. If you signed a mandatory arbitration agreement as part of your onboarding with a new employer, know that recent changes in federal law might limit the enforceability of that agreement.
You are no longer subject to mandatory arbitration when it comes to workplace sexual harassment and sexual assault claims. As an employee, you can now choose to take your sexual assault and sexual harassment claims to civil court to create more public and traceable records of sexual misconduct in your workplace.
Having your day in court to hold others accountable for egregious conduct can help you and other victims who are understandably afraid to speak about their experiences. At O’Connor, Parsons, Lane & Noble, we have won millions for mistreated employees. We can help you successfully file and litigate a workplace harassment or assault claim.
Forced Arbitration Agreements
In many cases, once a claimant files a complaint in civil court, the facts and parties involved become matters of public record. To avoid this kind of exposure, many employers require their employees to sign mandatory arbitration agreements. Many of these agreements state that employees will use arbitration to resolve future disputes with their employer and colleagues. Currently, an estimated 60 million people across the nation are subject to these types of agreements.
Arbitration can streamline the legal complaint process and make many factors of a complaint private. A company might require arbitration to:
- Protect trade secrets,
- Save money,
- Avoid embarrassment,
- Protect sensitive business information, or
- Hide a history of misconduct.
If you signed one of these agreements, you might have to enter private arbitration to resolve workplace disputes. In the past, an arbitration agreement could bar you from taking a sexual harassment or sexual assault claim to court. As of this year, that is no longer the case for many situations.
Forced Class-Action Lawsuit Waivers
Another kind of agreement many employers have required their employees to enter is a class-action waiver agreement. This type of agreement takes away an employee’s ability to file a class-action lawsuit to resolve an employment dispute. A class-action lawsuit is a lawsuit in which one person represents the legal interests of multiple claimants with similar legal issues. A class-action lawsuit can occur when:
- There are so many claimants that it’s almost impossible to join all of their claims;
- All the claimants’ legal claims share common facts and legal questions;
- The defendant’s claims or defenses against each claimant are similar and common among the entire group (or “class”) of claimants; and
- The representative of the class can fairly and adequately protect the interests of the entire class of claimants.
Employers often have deep pockets to pay multiple lawyers who employees might find difficult to fight alone. Class-action lawsuits can help mistreated employees find strength in numbers and pool their resources in a single, large fight against the defendant. Many employers make employees forfeit this effective option for resolving disputes in exchange for a job.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act
On March 3, 2022, the president signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. This law applies to sexual assault and sexual harassment cases that arise under state, tribal, and federal law.
Forced Arbitration Clauses Are No Longer Enforceable in Workplace Sexual Misconduct Cases
When it comes to sexual harassment or sexual assault that occurs on or after March 3, 2022, this law invalidates any prior mandatory arbitration agreement you signed to resolve such issues. You can still choose to enter binding arbitration after an incident of sexual misconduct occurs, but your employer can’t force you to waive your right to a trial beforehand. Basically, the choice is yours regarding how you want to resolve cases of sexual misconduct in the workplace.
Forced Class Action Waivers for Workplace Sexual Misconduct Cases Are No Longer Enforceable
The new act also invalidates mandatory employee waivers of class-action lawsuits when it comes to sexual misconduct cases. This huge development in the law can make it easier for wronged workers to speak out against the abuse they have suffered at work.
Forced Class Action Waivers and Mandatory Arbitration Agreements Are Still Valid for Other Kinds of Disputes
Please note that the new law doesn’t eliminate waivers or mandatory arbitration agreements for disputes that aren’t about sexual misconduct. If your employer requires you to sign an arbitration agreement or class-action waiver, make sure you fully read and understand it. An attorney can review these legal documents for you.
Does the New Law Apply to My Sexual Misconduct Complaint?
With such a substantial legal change challenging status quo workplace practices, questions about who can take advantage are practically inevitable. The new law states that federal law will determine whether the new act will apply to your dispute. The law also requires that a court (not an arbitrator) decide whether any waiver or agreement you signed is enforceable.
If you have endured workplace sexual misconduct, do not agonize over the details of your dispute and the terms of your employment contract alone. Bring your concerns to an experienced employment attorney immediately. An employment attorney can ensure you don’t miss any legal opportunities in your case and protect your rights.
We Are Here to Help You Make the Most of Your Legal Options
Sexual harassment and sexual assault in the workplace can be debilitating and devastating. You might need closure through telling your story publicly, or you might prefer to resolve the matter privately. Whatever your choice, our experienced, award-winning attorneys at O’Connor, Parsons, Lane & Noble can protect your rights and maximize your recovery. When it comes to cases of employment discrimination, we are a successful, record-setting firm in the State of New Jersey. Don’t be afraid to ask for help. You can call us or contact us online for a free consultation.
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