Creating and Challenging Compulsory Arbitration Agreements

This article provides a practical examination of how to draft, implement, and defend compulsory arbitration agreements in employment settings. Following the landmark Supreme Court decision in Gilmer v. Interstate/Johnson Lane Corp., courts have increasingly enforced arbitration clauses in employment contracts, transforming how workplace disputes are resolved. The article reviews legal standards for enforceability, common challenges to arbitration agreements, and key drafting elements to avoid invalidation, such as clarity, fairness, mutuality, and proper notice. It also addresses issues like employee consent, discovery limitations, the role of the EEOC, potential arbitral bias, and whether arbitration shifts at-will employment to just-cause standards. The piece is a comprehensive guide for employers seeking to create legally robust arbitration programs and for attorneys evaluating their vulnerabilities.