What are your views on using arbitration agreements as an alternative to employment litigation?
SPENCER: Arbitration is a great alternative to employment litigation. Both parties can benefit from an expedited legal process, despite the increase in costs for the employer. Most, though not all, lawyers recognize that the extremes are less likely in arbitration. Seven or eight figure verdicts in favor of the employee are far less common, but so are dispositive motions being granted in favor of the employer. Notably, while less common, dispositive motions are not entirely off the table. I have prevailed on a motion for summary judgment in arbitration, so it is not an impossibility. However, eliminating the threats of these extremes between the parties helps narrow the issues, reduces posturing, and focuses the process toward resolution or award.
VERANO: Arbitration agreements can be a very powerful and useful tool in employment litigation, especially since the United State Supreme Court’s Viking River Cruise decision. Since the ruling came down, State courts have been flooded with defense motions to compel arbitration of individual PAGA claims. PAGA claims have become the “poor man’s mini class action” over the past five years, able to be litigated outside of the complex court system, and Plaintiffs’ attorneys have used the PAGA case as a weapon to force employers into costly settlements, even when the employer has an arbitration agreement with the named employee that...
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