Kia Franklin

Lawyers: Read the Fine Print in Your Employment Contract

No Court for These Lawyers

Associates at big law firms may have to waive their right to take employment disputes to court:

Kirkland & Ellis has sent a memo to its associates informing that should there be a dispute with their employer that cannot be resolved internally, they will have to go arbitration, rather than court.

The new policy, first reported by David Lat of the AboveTheLaw.com blog, asks employees to hit the “acknowledge” tab on this e-mail by March 3.

“It’s the first I’ve ever heard of it,” says Leslie Corwin of Greenberg Traurig in New York, who counsels many of the largest law firms on their partnership agreements. He added, “I don’t think any firm wants to deal with these disputes in a public forum.”

The move appears to be a response to the publicity generated by the legal battle between Aaron Charney, a young associate at Sullivan & Cromwell, who sued the firm, contending that it discriminated against him based on his sexual orientation.(Emphasis Added) (Read Full Article Here)

Now, it’ll be interesting to see how these lawyers respond. How they react to being required to sign away their right to a jury trial should be telling for the rest of us. Many of these associates working for big firms do corporate defense work. Those working in labor and employment law, for example, may have had to fight to uphold pre-dispute arbitration clauses in contracts between their client corporations and the individual plaintiffs suing the corporations.

This is kind of like when car dealerships fought to get rid of binding mandatory arbitration clauses in contracts with car manufacturers, contracts in which manufacturers had the advantage, but maintained these same clauses in contracts with their buyers, contracts in which the dealers had the upper hand. Seems to me that lawyers who know first-hand the benefits (profits and low visibility for corporations) and drawbacks (pro-corporate bias and little procedural protections for plaintiffs) of the arbitration process would be an excellent canary for the minefield. If they oppose being bound by arbitration clauses themselves, it’s pretty fiar to guess that everyone else should also oppose having to go up against a big corporation in arbitration.

According to the article, continued employment is considered adequate compensation for employees who win disputes through the arbitration process. Imagine that: if a person sues her employer for, say, racial discrimination or sexual harassment, under arbitration the compensation could be that she gets to keep her job.

This could ultimately be a dumb move on the part of the firms, in my opinion, if they want to keep generating business by helping corporations fight to uphold arbitration clauses in their contracts with customers and employees. If these firms want their associates to have full professional faith in the pro-arbitration arguments they make on behalf of their corporate clients, it might be good to keep them in the dark about what arbitration actually does to the individual aggrieved plaintiff. That first-hand personal experience may threaten these lawyers’ faith in the process, or may cause them to grapple with the contradiction of arguing for something they wouldn’t want for themselves. What’s good for the goose better be good for the gander, right?

Click here for more information on binding mandatory arbitration.

So, assuming that enough associates are affected by this new policy, one can imagine that this could shake up the whole system by cutting down the ranks of corporate defense attorneys who actually believe pre-dispute mandatory binding arbitration is a good thing. That’s something with which I, for one, would have no problem.

Posted at 3:35 PM, Feb 22, 2008 in Permalink | Comments (6) | TrackBack (0)