If you have to submit your employment or wrongful termination case to a binding arbitration due to signing an arbitration agreement with the employer, you probably already know that this means that a single person – the arbitrator – will be deciding your case, and not a jury of 12 like it would be in a county superior court (or a jury of 6 in federal court). It’s therefore very important to choose the right arbitrator for your case, as it can make a difference between having a fair adjudication of your case and unfair or downright wrong. The right arbitrator for an employment case has to have at least two important qualities: (1) not biased in favor of employers; and (2) knowledgeable in employment law.
1. Bias
Many arbitrators favor employers because they used to represent employers or be in management themselves. The other common reason for this kind of bias, especially if you are suing a larger employer, is the fact that many arbitrators do not want to issue awards against those employers because they want more of their business in the future. If an arbitrator hits a large company with a significant award, he will likely lose on quite a bit a future potential business from that company because that large employer will not come back to that arbitrator when they are sued again. On the other hand, issuing an award against an employee in the type of employment case that can go either way will not result in any financial consequences to that arbitrator. Therefore, you have to make sure that your arbitrator doesn’t have a reputation of being in favor of employers. There are various directories and search tools available to find out whether a particular arbitrator has a reputation of being fair or being biased against employees.
2. Employment Law Expertise
Just because an arbitrator has been a judge for the past 20 years doesn’t mean that he knows employment law. All this means is that he has experience seeing how jurors react to certain facts, evidence and behavior in court and that he is better familiar with the rules of evidence than others. But you don’t have a jury in arbitration proceedings, so that experience doesn’t matter to you. Also, the rules of evidence in arbitration are not as strict as they are in court. It’s far more important that your arbitrator has actual, practical experience with employment cases and he doesn’t need to learn the law in order to decide your case. This is especially true with respect to disability discrimination cases, where significant protections are afforded to employees that many arbitrators wouldn’t be aware of unless they actually had deal with those specific laws in real cases. You should therefore make sure that your arbitrator has sufficient experience litigating employment cases in the past. You are better off having your cases arbitrated by a former employment attorney who has never been a judge, than a retired judge who only has a very basic understanding of employment and wrongful termination law.