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Are Mandatory Arbitration Agreements Enforceable in New York Employment?

Mandatory arbitration agreements are generally enforceable in New York for most employment disputes, but New York law prohibits employers from requiring arbitration of sexual harassment claims. You can be required to arbitrate wage disputes, discrimination (other than sexual harassment), wrongful termination, and contract claims. However, arbitration agreements cannot prevent you from filing complaints with government agencies (EEOC, Department of Labor, Division of Human Rights) or participating in agency investigations.

Courts will refuse to enforce arbitration agreements that are unconscionable—imposing excessive fees, severely limiting discovery, restricting damages, or choosing biased arbitrators. Understanding what you’re waiving when you sign arbitration agreements helps protect your right to a fair forum if workplace disputes arise.

Why Arbitration Agreements Matter

Arbitration is private dispute resolution where a neutral arbitrator (not a judge or jury) decides your case. It’s fundamentally different from court litigation:

Court Litigation:

  • Public proceedings
  • Right to jury trial
  • Extensive discovery (depositions, document requests)
  • Full appeal rights
  • Detailed written decisions
  • Precedential value

Arbitration:

  • Private proceedings (no public record)
  • Arbitrator decides (no jury)
  • Limited discovery
  • Narrow grounds for appeal
  • Brief decisions (sometimes no written explanation)
  • No precedent

Employers favor arbitration because it:

  • Keeps disputes confidential
  • Eliminates jury trials (perceived as pro-employee)
  • Reduces discovery costs
  • Speeds resolution
  • Limits damage awards in some cases
  • Avoids precedent-setting decisions

Employees often prefer court because:

  • Juries may award higher damages for egregious conduct
  • Public proceedings create accountability
  • Discovery may uncover systemic problems
  • Appeal rights are broader
  • Class action options may be available

Understanding whether you’ve agreed to arbitration—and whether it’s enforceable—determines where you can bring claims if problems arise.

New York’s Sexual Harassment Arbitration Ban

In 2018, New York enacted a groundbreaking law prohibiting mandatory arbitration of sexual harassment claims. This protection gives harassment victims the right to go to court regardless of prior arbitration agreements.

What the Ban Covers

Employers cannot require arbitration of:

Sexual Harassment Claims:

  • Quid pro quo harassment (demands for sexual favors)
  • Hostile work environment based on sex
  • Unwelcome sexual advances or conduct
  • Sex-based harassment creating intimidating workplace

Related Claims:

  • Sex discrimination intertwined with harassment
  • Retaliation for reporting sexual harassment
  • Constructive discharge due to harassment

The prohibition applies to:

  • Pre-dispute arbitration agreements (signed before harassment occurred)
  • Arbitration clauses in employment contracts
  • Arbitration provisions in offer letters or handbooks
  • Clauses requiring arbitration as a condition of employment

The Law Applies Retroactively

Even if you signed an arbitration agreement before the 2018 law took effect, you cannot be forced to arbitrate sexual harassment claims. The law invalidated these provisions going forward for harassment claims while potentially leaving other dispute arbitration intact.

What You Can Still Choose Voluntarily

After a harassment dispute arises, you and your employer can voluntarily agree to arbitrate. The law only prohibits mandatory pre-dispute arbitration clauses—you’re free to choose arbitration later if you prefer.

Reasons you might choose arbitration after harassment:

  • Privacy (proceedings are confidential)
  • Speed (faster than court litigation)
  • Lower costs (less expensive than lawsuits)
  • Negotiated procedures favoring you

The key: It must be your genuine choice after the harassment occurred, not a requirement you agreed to before knowing you’d face harassment.

Enforcement and Penalties

If your employer tries to enforce a harassment arbitration clause:

  • Courts will refuse to compel arbitration
  • You can proceed in court or with agency complaints
  • The employer may face penalties under the NY Human Rights Law
  • Retaliation for refusing arbitration is illegal

The arbitration ban is a firm public policy protecting harassment victims’ access to courts.

Source: New York State Senate Bill S6577

What Claims Can Still Be Arbitrated in New York

While sexual harassment is exempt, employers can require arbitration for most other employment disputes:

Wage and Hour Claims

  • Unpaid wages and overtime
  • Minimum wage violations
  • Improper deductions
  • Wage statement violations
  • Failure to pay earned commissions

These are among the most common arbitrated claims. If you sign an arbitration agreement, wage disputes typically must be arbitrated rather than litigated in court.

Non-Harassment Discrimination

  • Race discrimination
  • Age discrimination
  • Disability discrimination
  • National origin discrimination
  • Religious discrimination
  • Pregnancy discrimination
  • Sex discrimination (not related to harassment)

Courts distinguish between sex discrimination involving harassment (not arbitrable) and other sex discrimination (arbitrable if agreement is valid).

Wrongful Termination

  • Breach of employment contract
  • Termination violating public policy
  • Constructive discharge (non-harassment)
  • Violation of implied covenant of good faith

Retaliation (Non-Harassment)

  • Retaliation for wage complaints
  • Retaliation for disability accommodation requests
  • Whistleblower retaliation (some exceptions—see below)

Contract and Business Tort Claims

  • Breach of employment contract
  • Defamation
  • Intentional infliction of emotional distress
  • Fraud or misrepresentation
  • Negligent hiring or supervision

Trade Secret and Restrictive Covenant Disputes

  • Non-compete enforcement
  • Non-solicitation violations
  • Confidentiality breaches
  • Trade secret misappropriation

If your arbitration agreement covers these disputes, you typically must arbitrate them rather than sue in court.

What Arbitration Agreements Cannot Restrict

Even with a valid arbitration agreement, you retain certain indefeasible rights:

1. Right to File Agency Charges

You can always file complaints with:

Federal Agencies:

  • Equal Employment Opportunity Commission (EEOC)
  • National Labor Relations Board (NLRB)
  • Occupational Safety and Health Administration (OSHA)
  • Department of Labor (DOL)
  • Securities and Exchange Commission (SEC)

State Agencies:

  • New York Division of Human Rights
  • New York Department of Labor
  • New York Attorney General

Arbitration agreements cannot waive your right to file administrative charges or participate in agency investigations.

2. Agency-Led Litigation

The EEOC or state agencies can sue your employer on your behalf even if you signed an arbitration agreement. While you may not be able to recover individual monetary relief (depending on circuit law), the agency can bring enforcement actions.

3. Concerted Activity Under NLRA

The National Labor Relations Act protects your right to engage in “concerted activity”—working with colleagues to improve working conditions. This includes:

  • Discussing wages and working conditions
  • Filing group complaints
  • Supporting coworkers’ complaints
  • Union organizing

Some courts have ruled that mandatory arbitration with class action waivers violates NLRA rights, though this is contested.

4. Whistleblower Protections

Various whistleblower laws protect reporting of:

  • Securities fraud (Dodd-Frank)
  • Safety violations (OSHA)
  • Financial misconduct
  • Legal violations

While arbitration clauses may cover retaliation claims, they cannot prevent you from reporting violations to authorities or receiving whistleblower awards.

5. Criminal Conduct Reporting

No arbitration agreement can prevent you from reporting criminal conduct to law enforcement or cooperating with criminal investigations.

Unconscionability: When Courts Refuse to Enforce Arbitration

Even for non-harassment claims, courts will refuse to enforce arbitration agreements that are “unconscionable”—fundamentally unfair. New York courts analyze both procedural and substantive unconscionability.

Procedural Unconscionability

How the agreement was formed. Red flags include:

Lack of Notice:

  • Hidden in dense employment paperwork
  • Not clearly labeled as arbitration agreement
  • Incorporated by reference without providing actual arbitration rules

Lack of Meaningful Choice:

  • Take-it-or-leave-it basis with no negotiation
  • Presented after you’ve accepted the job or relocated
  • Required as condition of continued employment without additional compensation
  • Signed under time pressure

Deceptive Practices:

  • Misrepresenting what arbitration means
  • Claiming it’s optional when it’s mandatory
  • Failing to explain you’re waiving jury trial rights

While take-it-or-leave-it contracts are common and generally enforceable, egregious circumstances may constitute procedural unconscionability.

Substantive Unconscionability

The terms of the agreement. Courts reject provisions that:

Impose Excessive Costs:

  • Requiring you to pay arbitrator fees (employees should not bear substantial arbitration costs)
  • Filing fees exceeding court costs
  • Cost-splitting that makes arbitration prohibitively expensive

Severely Limit Remedies:

  • Prohibiting punitive damages where statutes allow them
  • Limiting damages below statutory minimums
  • Restricting discovery so you cannot prove your case
  • Unreasonably short statutes of limitations

Create Bias Toward Employer:

  • Employer chooses the arbitrator
  • Arbitrator has ongoing relationship with employer
  • Employer can arbitrate claims against you but you must arbitrate claims against employer (one-sided)

Waive Statutory Rights:

  • Prohibiting recovery of attorney’s fees where statutes provide for them
  • Requiring confidentiality that prevents reporting to authorities
  • Waiving rights beyond dispute resolution (e.g., waiving substantive employment protections)

Examples of Unconscionable Provisions

Fee-Splitting:
“Employee and employer will each pay 50% of arbitrator’s fees.”

  • Arbitrator fees can be $5,000-$20,000+
  • Employees cannot afford these costs
  • Makes arbitration practically unavailable

Extreme Discovery Limits:
“No discovery permitted; each party may submit 5 pages of evidence.”

  • Employment cases require discovery of personnel files, emails, witness testimony
  • Prevents employees from proving systemic discrimination or pattern evidence

One-Sided Terms:
“Employer may bring claims in court or arbitration at its option. Employee must arbitrate all claims.”

  • Lack of mutuality suggests agreement exists solely to benefit employer
  • Courts often strike down one-sided arbitration provisions

Prohibited Remedies:
“Arbitrator may not award punitive damages or attorney’s fees.”

  • Where statutes provide for these remedies, arbitration cannot eliminate them
  • Makes statutory rights illusory

The “Severability” Question

If part of an arbitration agreement is unconscionable, courts decide whether to:

  • Sever the bad provisions and enforce the rest, or
  • Void the entire agreement as fundamentally unfair

Courts are more likely to void entirely if:

  • Multiple provisions are unconscionable
  • The unconscionable terms are central to the agreement
  • Severing would rewrite the agreement substantially

Class Action Waivers in Arbitration Agreements

Many arbitration agreements include “class action waivers” requiring individual arbitration and prohibiting class or collective actions.

Federal Law: Epic Systems Decision

The U.S. Supreme Court in Epic Systems v. Lewis (2018) held that class action waivers in arbitration agreements are generally enforceable under the Federal Arbitration Act, even for employment claims.

This means:

  • Employers can require individual arbitration
  • Employees cannot bring class actions in court or arbitration
  • You must pursue claims individually, not as part of a group

NLRA Concerns

Critics argue class action waivers violate the National Labor Relations Act’s protection of “concerted activity.” The NLRB has flip-flopped on this issue depending on political composition.

Current law: Class action waivers are generally enforceable, but challenges continue in some circuits.

Practical Impact

Class action waivers significantly favor employers:

  • Small individual claims become economically unviable (cost of arbitration exceeds recovery)
  • Employees cannot pool resources to challenge systemic practices
  • Employers face lower liability exposure

Example: You’re owed $2,000 in unpaid overtime. Arbitration costs $5,000. Economically, you cannot pursue the claim individually. In a class action with 100 employees, the $200,000 total claim justifies litigation costs.

Negotiating Around Class Waivers

If presented with a class action waiver, you might:

  • Request removal (unlikely to succeed)
  • Negotiate that employer pays all arbitration costs (makes individual arbitration viable)
  • Seek higher wages in exchange for the waiver
  • Consult an attorney if the waiver prevents you from vindicating statutory rights

When Arbitration Agreements Are Signed

Timing matters for enforceability:

At Initial Hiring

Arbitration agreements signed when you accept a job offer are generally enforceable. Employment itself is consideration for the agreement.

Typical Scenario:

  • Offer letter includes arbitration clause
  • Acceptance of offer constitutes agreement to arbitrate
  • Or, you sign separate arbitration agreement as part of onboarding

Courts routinely uphold these agreements absent unconscionability.

After Employment Begins

If your employer requires arbitration after you’ve already started working, additional consideration is needed:

  • Continued employment alone is insufficient in New York
  • Employer must provide raise, promotion, bonus, or other benefit
  • Threat of termination without new consideration may make agreement unenforceable

Exception: Some courts hold that at-will employees can be required to arbitrate as a condition of continued at-will employment, but this is contested in New York.

In Severance Agreements

Severance agreements often include arbitration clauses for any disputes about the agreement’s terms or enforcement. These are enforceable because:

  • The severance payment is consideration
  • You have review time and attorney consultation opportunity
  • Post-dispute arbitration agreements are generally valid

See severance agreements for negotiation strategies.

Arbitration Procedures: What to Expect

If you’re required to arbitrate, understanding the process helps you navigate it effectively.

Selecting the Arbitrator

Neutral Arbitration Organizations:

  • American Arbitration Association (AAA)
  • JAMS (Judicial Arbitration and Mediation Services)
  • Other neutral providers

Selection Process:

  • Both sides receive a list of potential arbitrators
  • Each party strikes (eliminates) unacceptable candidates
  • Remaining arbitrators are ranked
  • Top-ranked arbitrator is selected

Red Flags:

  • Employer unilaterally chooses arbitrator
  • Arbitrator has ongoing relationship with employer
  • No meaningful input in selection

Costs and Fees

Proper Fee Allocation:

  • Employers should bear arbitrator and administrative costs
  • Employees pay only filing fees comparable to court costs
  • Many arbitration rules (e.g., AAA Employment Rules) require employer to pay

Improper Fee-Shifting:

  • Requiring employee to pay thousands in arbitration fees
  • Cost-splitting that makes arbitration unaffordable
  • These provisions are unconscionable and unenforceable

Discovery

Arbitration typically involves limited discovery compared to court:

Common Arbitration Discovery:

  • Document exchanges
  • Limited depositions (often 2-3 per side)
  • Interrogatories (written questions)
  • Less formal discovery than court litigation

Arbitrator Discretion:

  • Arbitrators control discovery scope
  • Can limit burdensome or irrelevant discovery
  • Must allow sufficient discovery to prove your case

Red Flag:

  • Arbitration agreements that severely restrict discovery
  • “No discovery” provisions
  • These may be unconscionable if they prevent proving your case

Hearing Process

Similar to Trial:

  • Opening statements
  • Witness testimony under oath
  • Cross-examination
  • Documentary evidence
  • Closing arguments

Differences from Court:

  • Typically one or a few days, not weeks
  • More relaxed evidence rules
  • No jury
  • Arbitrator asks questions directly

Decision and Award

Arbitrator’s Decision:

  • Usually issued within 30-60 days
  • May include brief explanation or detailed reasoning
  • Final and binding (limited appeal rights)

Enforcement:

  • Arbitration awards can be enforced in court
  • Courts convert awards to judgments for collection

Appeal Rights

Appeals of arbitration awards are extremely limited:

Grounds for Appeal:

  • Arbitrator exceeded their authority
  • Fraud or corruption
  • Evident partiality or bias
  • Arbitrator refused to hear relevant evidence
  • Violation of public policy

Not Grounds for Appeal:

  • Arbitrator made legal errors
  • Wrong factual findings
  • Unfavorable outcome
  • Disagreement with decision

This is a major difference from court litigation, where you can appeal legal and factual errors.

Opting Out of Arbitration: Is It Possible?

Some employers allow opt-out within a limited time (e.g., 30 days after signing). Read your agreement carefully:

Opt-Out Procedures:

  • Must be in writing
  • Sent to specific address/person
  • Within specified deadline
  • Follow exact procedures stated

Failure to Opt Out:

  • Agreement becomes binding
  • You’ve waived your opt-out right

Considerations:

  • If opt-out is available, carefully consider whether to exercise it
  • Consult an attorney if uncertain
  • Missing the deadline forfeits your choice

Industry-Specific Arbitration Issues

Different industries have unique arbitration patterns:

Finance and Banking

  • Arbitration extremely common (often through FINRA for securities industry)
  • Class action waivers standard
  • Usually well-funded arbitration (employer pays costs)
  • Sophisticated procedures

Technology

  • Arbitration increasingly common
  • Class action waivers hotly contested (affects data breaches, wage claims)
  • Often includes opt-out provisions

Healthcare

  • Arbitration for employment disputes separate from medical malpractice
  • Concerns about patient care whistleblowing and arbitration
  • Protections for reporting safety issues

Retail and Hospitality

  • Mass arbitration agreements for hourly workers
  • Wage and hour claims most affected
  • Class action waivers prevent collective action on widespread violations

Gig Economy

  • Arbitration nearly universal for app-based workers
  • Major battles over worker classification in arbitration
  • Tension between individual arbitration and systemic misclassification

Strategies If You Must Arbitrate

If you’re bound by arbitration, maximize your chances of success:

1. Understand the Arbitration Rules

Request:

  • The arbitration organization’s rules (AAA Employment Rules, JAMS rules, etc.)
  • Fee schedules
  • Procedures for selecting arbitrators

2. Choose Your Arbitrator Carefully

Research potential arbitrators:

  • Background and experience
  • Prior decisions (if available)
  • Potential biases or patterns
  • Strike arbitrators with conflicts

3. Demand Adequate Discovery

Don’t accept stonewalling:

  • File motions to compel discovery if employer refuses reasonable requests
  • Document discovery disputes
  • Argue that limited discovery prevents proving your case (unconscionability argument)

4. Control Costs

If employer tries to impose costs on you:

  • Object to improper fee-shifting
  • Cite arbitration rules requiring employer to pay
  • Move to invalidate the arbitration agreement as unconscionable

5. Document Everything

  • Keep detailed records of disputes
  • Save evidence (emails, documents, witnesses)
  • Create timeline of events

6. Consider Mass Arbitration

If many employees face similar issues:

  • File individual arbitrations simultaneously
  • Overwhelm employer with arbitration costs (hundreds or thousands of individual arbitrations cost more than class action)
  • Employer may settle or agree to renegotiate arbitration terms

7. Hire an Experienced Attorney

Employment arbitration is specialized:

  • Not all litigators handle arbitration effectively
  • Look for attorneys with arbitration experience
  • Many work on contingency (percentage of recovery)

Real-World Examples: Arbitration in Action

Example 1: Sexual Harassment – Arbitration Refused

Maria signed an arbitration agreement in 2015. In 2021, she experienced sexual harassment. Her employer moved to compel arbitration.

The court refused because:

  • NY’s 2018 law prohibits mandatory harassment arbitration
  • The law applies retroactively to invalidate prior agreements for harassment claims
  • Maria could proceed in court

Maria chose court litigation to ensure public accountability.

Example 2: Wage Claim – Forced to Arbitrate

David was owed $15,000 in unpaid overtime. He signed an arbitration agreement at hiring. He filed a lawsuit, and his employer moved to compel arbitration.

The court compelled arbitration because:

  • Wage claims are arbitrable in New York
  • The agreement was valid and not unconscionable
  • Sexual harassment exception didn’t apply

David arbitrated his claim and recovered $15,000 plus attorney’s fees.

Example 3: Unconscionable Fee-Splitting

Jennifer’s arbitration agreement required her to pay 50% of arbitrator fees ($10,000). She earned $35,000 annually. When she tried to arbitrate a discrimination claim, she couldn’t afford the fees.

The court invalidated the agreement because:

  • Fee-splitting made arbitration prohibitively expensive
  • Employees shouldn’t bear substantial arbitration costs
  • The provision was substantively unconscionable

Jennifer could proceed in court.

Example 4: Class Action Waiver Enforced

Fifty employees had wage claims averaging $1,500 each. Their arbitration agreements included class action waivers. They tried to file a class action lawsuit.

The court enforced the waiver because:

  • Epic Systems upheld class action waivers under the FAA
  • Each employee had to arbitrate individually
  • Employer paid arbitration costs, making individual claims viable

The employees arbitrated individually. Many settled; some recovered through arbitration.

Example 5: One-Sided Agreement Struck Down

Robert’s arbitration agreement allowed his employer to sue him in court for trade secrets and non-compete violations, but required him to arbitrate all employment claims.

The court refused enforcement because:

  • Lack of mutuality suggested fundamental unfairness
  • The one-sided terms showed the agreement existed solely to benefit the employer
  • Procedural and substantive unconscionability combined

Robert could litigate his wrongful termination claim in court.

Example 6: Discovery Limitation Invalidated

Nina’s arbitration agreement limited discovery to 3 hours of depositions and 10 document requests. Her discrimination claim required extensive discovery of personnel files, emails, and witness testimony.

The court found the provision unconscionable because:

  • Discovery limits prevented her from proving systemic discrimination
  • The restrictions made statutory rights illusory
  • She needed discovery to establish her prima facie case

The agreement was invalidated and she could proceed in court.

Example 7: Post-Dispute Voluntary Arbitration

After Lisa experienced harassment, she and her employer agreed to arbitrate for speed and privacy. She negotiated:

  • Selection of mutually acceptable arbitrator
  • Full discovery rights
  • Employer pays all costs
  • Confidential proceedings

This voluntary post-dispute arbitration was valid because:

  • Lisa chose it after knowing her claims
  • Terms favored her
  • She wasn’t bound by pre-dispute mandatory clause

Lisa recovered substantial damages through arbitration.

Example 8: Retaliation Claim – Arbitration Compelled

Carlos complained about race discrimination, then was fired. His arbitration agreement covered “all employment disputes.” He sued for retaliation.

The court compelled arbitration because:

  • Retaliation for discrimination complaints is arbitrable
  • Sexual harassment exception didn’t apply
  • The agreement was enforceable

Carlos arbitrated and won retaliation damages.

Example 9: NLRB Charge Not Blocked

Aisha signed an arbitration agreement. She filed an NLRB charge alleging unfair labor practices. Her employer argued she had to arbitrate.

The NLRB and court held:

  • Arbitration agreements cannot prevent NLRB charges
  • Aisha could proceed with her administrative complaint
  • The NLRB could investigate and litigate on her behalf

The charge proceeded despite the arbitration agreement.

Example 10: Severance Arbitration Upheld

Marcus signed a severance agreement with arbitration clause for disputes about the agreement’s interpretation. Later, he claimed the severance was inadequate and sued.

The court compelled arbitration because:

  • Post-dispute arbitration agreements are valid
  • Marcus received consideration (severance payment)
  • He had time to review and consult an attorney
  • The arbitration clause was clear and mutual

Marcus arbitrated his severance dispute.

Example 11: Opt-Out Exercised

Jordan received an arbitration agreement with a 30-day opt-out provision. He consulted an attorney who advised opting out. He sent timely written notice.

Result: Jordan preserved his right to litigate in court. When he later had a wage claim, he filed a lawsuit without arbitration issues.

Example 12: Mass Arbitration Strategy

A company required arbitration with class waivers for 5,000 delivery drivers. The drivers filed 5,000 individual arbitrations simultaneously. At $2,000+ per arbitration, the company faced $10+ million in arbitration costs.

Result: The company settled the mass arbitration for far more than it would have paid in a class action, demonstrating that arbitration can backfire on employers who impose it on large workforces.

Common Questions About New York Arbitration Agreements

Q: Can I refuse to sign an arbitration agreement when starting a new job?

A: You can refuse, but the employer can withdraw the job offer or decline to hire you. Arbitration agreements are typically a condition of employment. Consider negotiating for opt-out provisions or limitations on scope.

Q: What if I didn’t realize I signed an arbitration agreement?

A: Courts generally enforce arbitration agreements even if you didn’t read them carefully, unless the employer concealed the provision or engaged in fraud. Always read employment documents before signing.

Q: Can my employer add arbitration requirements after I’ve been working for years?

A: Only with additional consideration (raise, promotion, bonus). Continued employment alone may not be sufficient. If threatened with termination for refusing, consult an attorney—the agreement may be unenforceable.

Q: Does arbitration prevent me from filing an EEOC or NLRB charge?

A: No. You can always file administrative charges with government agencies. Arbitration agreements only affect your ability to sue in court; they cannot prevent agency complaints.

Q: How much does arbitration cost?

A: Arbitrator fees range from $3,000-$20,000+ depending on case complexity. Under proper arbitration agreements, employers should pay these costs. If your agreement requires you to pay, it may be unconscionable.

Q: Can I appeal an arbitration decision I disagree with?

A: Appeal rights are extremely limited. You can only appeal for arbitrator misconduct, fraud, bias, or exceeding authority—not for legal or factual errors. This is a major difference from court litigation.

Q: What’s the difference between arbitration and mediation?

A: Mediation is facilitated negotiation where a neutral mediator helps parties reach voluntary settlement. Arbitration is binding decision-making where an arbitrator issues a final decision. Mediation doesn’t waive your right to litigate; arbitration does.

Q: Can I be required to arbitrate my severance agreement disputes?

A: Yes. Post-dispute arbitration agreements in severance packages are generally enforceable. Negotiate for court resolution if you prefer, or accept arbitration as part of the severance deal.

Q: What if my arbitration agreement says New York law doesn’t apply?

A: Courts may still apply New York law if you work in New York, especially for the sexual harassment arbitration ban which is a matter of public policy. Choice of law provisions are not absolute.

Q: Will my employer know if I file a government agency charge even if I can’t sue in court?

A: Yes. When you file an EEOC or state agency charge, the employer receives notice and a copy of the charge. Arbitration doesn’t provide confidentiality for administrative complaints.

Related Topics

Take Action: Review Your Arbitration Agreement

If you’ve signed an arbitration agreement or are being asked to sign one:

  1. Locate the agreement – Find out if you’re bound by arbitration
  2. Check for opt-out provisions – Exercise opt-out if available and desired
  3. Review for unconscionability – Identify fee-shifting, discovery limits, one-sided terms
  4. Understand what’s covered – Know which claims must be arbitrated
  5. Preserve agency rights – Remember you can always file administrative charges
  6. Consult an attorney – Get legal review before signing or if facing arbitration

If your employer is trying to compel arbitration of a sexual harassment claim, contact an attorney immediately—New York law protects your right to go to court.

Facing mandatory arbitration or need agreement review? Contact the New York State Bar Association Lawyer Referral Service to find an experienced employment attorney.

Legal Disclaimer

This article provides general information about New York arbitration agreements in employment and should not be construed as legal advice. Whether an arbitration agreement is enforceable and what claims must be arbitrated depends on specific contract language, the type of claims, and many other factors.

For advice about your specific arbitration agreement, consult a licensed New York employment attorney. Laws change frequently, and this information may not reflect the most recent legal developments.

Nothing in this article creates an attorney-client relationship. If your employer is trying to compel arbitration or you’re facing arbitration proceedings, contact an attorney immediately.

Last updated: November 4, 2025