Revising and Re-Papering Employment Arbitration Agreements: Management-Side Counseling for the New Age of Arbitration

This session will focus on what arbitration agreements should say to survive a substantive challenge. It will also highlight language commonly included in arbitration agreements that should be avoided following several recent changes in law and court decisions. Cook v. University of Southern California will be examined, including both its practical implications and its influence on subsequent state and federal court decisions. This session will also discuss the benefits and drawbacks of explicitly incorporating the dispute resolution rules of arbitration service providers, including their mass arbitration provisions, and the impact of such provisions on delegation clauses. Finally, the session will conclude with a discussion of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) and how the substantive terms of arbitration agreements should be modified to comply with its provisions.

This session will focus on how to execute, document, and maintain arbitration agreements so they survives formation challenges and fee disputes, as well as how to use them strategically in litigation. It will include a discussion of Rickes v. Thermo Fisher Scientific Inc. and its impact on rollout protocols for new arbitration agreements, as well as Hohenshelt v. Superior Court and what it means for employers who fail to timely pay arbitration fees. Finally, the session will review best practices for maintaining records related to arbitration agreements, including delivery and review confirmation, obtaining employee signatures, and how such practices can affect PAGA, class, and collective litigation.