Washington Employment Arbitration Agreements: Your Rights and Options

Quick Answer: Arbitration agreements require you to resolve employment disputes through private arbitration instead of court. Many employers require them as condition of employment. While generally enforceable, Washington and federal law have created important exceptions, particularly for sexual harassment and sexual assault claims, which can now proceed in court regardless of arbitration agreements. Understanding your arbitration agreement is crucial for protecting your rights.

Arbitration changes how—and often whether—you can pursue employment claims.

What Is Employment Arbitration?

Basic Concept

Arbitration is private dispute resolution:

• Cases decided by arbitrator(s), not judge or jury
• Typically faster than court
• Usually less formal
• Generally limited discovery
• Very limited appeal rights

Mandatory vs. Voluntary Arbitration

Mandatory arbitration:

• Required as condition of employment
• "Sign or don't work here"
• Most employment arbitration is mandatory

Voluntary arbitration:

• Agreed to after dispute arises
• Both parties choose arbitration
• Less common in employment

What You're Giving Up

By signing arbitration agreement, you typically give up:

• Right to jury trial
• Right to file lawsuit in court
• Ability to join class actions
• Extensive discovery process
• Public record of proceedings
• Broad appeal rights

How Arbitration Differs from Court

Process Differences

Practical Implications

Arbitration may help you:

• Faster resolution
• Less expensive (sometimes)
• Simpler process
• Private proceedings

Arbitration may hurt you:

• No jury (often more sympathetic to employees)
• Limited discovery (harder to get evidence)
• Arbitrator selection (may favor repeat employer users)
• Confidentiality (employer misconduct stays hidden)
• Limited appeals (even if arbitrator errs)

Recent Legal Changes

Ending Forced Arbitration Act (2022)

Federal law now prohibits mandatory arbitration for:

• Sexual harassment claims
• Sexual assault claims

What this means:

• Even if you signed arbitration agreement
• You can choose court instead of arbitration
• For claims arising after March 3, 2022
• Employee's choice, not employer's

Washington State Developments

Washington has been hostile to some arbitration provisions:

• Courts scrutinize unconscionable terms
• Some class action waivers challenged
• Consumer protection influences employment analysis

Ongoing Legal Battles

Courts continue to address:

• Scope of sexual harassment exception
• Related claims (retaliation for reporting harassment)
• State law claims alongside federal

Elements of Arbitration Agreements

Typical Provisions

Scope of claims:

• Which disputes are covered?
• Employment-related claims
• May exclude some statutory claims

Arbitration provider:

• AAA, JAMS, or other organization
• Provider's rules govern process

Arbitrator selection:

• How arbitrator is chosen
• Qualifications required

Location:

• Where arbitration takes place
• Can be inconvenient if distant

Costs:

• Who pays filing fees
• Who pays arbitrator fees
• Limits on employee costs

Class action waiver:

• Prohibition on joining class actions
• Individual claims only

Confidentiality:

• Proceedings kept private
• May prohibit discussing

Red Flags to Watch For

Problematic provisions:

• Employee pays excessive fees
• Arbitration in distant location
• Very short filing deadlines
• Biased arbitrator selection
• Broad confidentiality requirements
• Unilateral modification rights

Challenging Arbitration Agreements

Unconscionability

Procedural unconscionability:

• Take-it-or-leave-it presentation
• Hidden in paperwork
• No opportunity to negotiate
• Unequal bargaining power

Substantive unconscionability:

• One-sided terms
• Excessive costs to employee
• Unfair procedures
• Waives important rights

Both usually required: Courts typically require showing both procedural AND substantive unconscionability.

Specific Challenges

Cost provisions:

• If employee must pay excessive fees
• Courts may find unconscionable
• Green Tree rule: prohibitive costs

Coverage asymmetry:

• If only employee's claims are arbitrated
• Employer can still sue in court
• May be unconscionable

Impossible deadlines:

• Very short filing periods
• Shorter than statute of limitations

Sexual Harassment Exception

Per federal law (2022):

• Sexual harassment claims excluded
• Sexual assault claims excluded
• Employee chooses forum
• Retroactive agreements void

What qualifies:

• Harassment based on sex
• Assault claims
• Related retaliation claims (possibly)

Navigating Existing Agreements

If You've Already Signed

Options to explore:

• Challenge enforceability
• Invoke sexual harassment exception
• Argue claims fall outside scope
• Negotiate different forum

Before Signing New Agreement

Consider:

• Can you negotiate terms?
• What claims are covered?
• What are the costs?
• Where is arbitration held?
• How is arbitrator selected?

Document your concerns:

• Objections in writing
• Signed under protest (if no choice)
• Note you had no bargaining power

If Employer Demands Arbitration

After dispute arises:

• Review agreement carefully
• Identify potential challenges
• Consider sexual harassment exception
• Consult attorney before responding

The Arbitration Process

Filing a Claim

1. Review arbitration agreement for requirements
2. Determine arbitration provider (AAA, JAMS, etc.)
3. File demand for arbitration
4. Pay filing fee (often split)
5. Follow provider's rules

Arbitrator Selection

Typical process:

• Provider gives list of potential arbitrators
• Parties strike unacceptable choices
• Remaining arbitrators ranked
• Provider selects based on rankings

Consider:

• Arbitrator's employment law experience
• Past decisions (if available)
• Industry background
• Perceived neutrality

Limited Discovery

Typical arbitration discovery:

• Document exchange
• Perhaps depositions (limited)
• Fewer interrogatories
• No extensive document production

How this affects you:

• Harder to get evidence from employer
• May not find "smoking gun"
• Must build case with less information

The Hearing

Arbitration hearings:

• Less formal than trial
• Rules of evidence relaxed
• Shorter than trial
• No jury

You can still:

• Present evidence
• Examine witnesses
• Make legal arguments
• Have attorney represent you

The Decision

Arbitration awards:

• Arbitrator issues written decision
• Usually final and binding
• Very limited appeal rights
• Can be confirmed as court judgment

Appealing Arbitration Decisions

Very Limited Grounds

Courts will only overturn if:

• Award procured by corruption or fraud
• Arbitrator was biased or corrupt
• Arbitrator exceeded powers
• Arbitrator refused to hear relevant evidence

NOT grounds for appeal:

• Arbitrator misapplied law
• Decision was wrong on facts
• Better arguments existed

Practical Reality

Most arbitration awards stick. Even if arbitrator makes errors, appeals rarely succeed.

Frequently Asked Questions

Can I refuse to sign an arbitration agreement?

Usually not without consequences. Employer can condition employment on signing. But you can negotiate or sign under protest.

Are all employment claims subject to arbitration?

Depends on agreement language. Most broad agreements cover typical employment claims. Sexual harassment/assault now exempt by federal law.

Does arbitration cost me money?

Depends on agreement. Excessive costs to employees may make agreement unenforceable. Many agreements limit employee costs.

Can I still get attorney for arbitration?

Yes. You have right to representation. Many employment attorneys handle arbitration cases.

Is arbitration always bad for employees?

Not always. Faster, cheaper (sometimes), and private. But statistically, employers win more often in arbitration than court.

What about class actions?

Most arbitration agreements waive class action rights. This has been upheld by Supreme Court. You're limited to individual claims.

Can I report harassment to agency even with arbitration agreement?

Yes. Arbitration doesn't prevent filing with EEOC or WSHRC. But monetary recovery may still go to arbitration (except for sexual harassment exception).

Related Topics

• Washington Employment Contracts
• Washington Sexual Harassment
• Washington Severance Agreements
• Washington Workplace Discrimination
• How to File WSHRC Complaint

Take Action

Arbitration agreements significantly affect your legal rights. Understanding them before signing—and knowing your options after—is crucial.

Key steps:

1. Read any arbitration agreement before signing
2. Identify concerning provisions
3. Know your exception rights (sexual harassment)
4. Consult attorney before challenging agreement
5. Preserve all documents related to agreement

Your rights in arbitration are more limited than in court. Know what you're agreeing to.

Legal Disclaimer

This article provides general information about employment arbitration agreements in Washington and is not legal advice. Arbitration law is complex and rapidly evolving. For advice about your specific agreement or situation, consult a qualified employment attorney.

For additional information:

• American Arbitration Association: https://www.adr.org/
• JAMS: https://www.jamsadr.com/