Be Sure Your Arbitration Clause Clearly States Who Will Decide Whether a Dispute Is Arbitrable
One of the prime reasons many companies require employees to arbitrate disputes is to ensure confidentiality. Indeed, absent an arbitration provision, an employee can file publicly available papers containing unfounded and scurrilous allegations that leave the employer with no recourse but to litigate or settle. Moreover, even if the employer eventually prevails, severe damage may be done by having its name dragged through the mud due to the publicity associated with the claims.
As the recent decision in Boursiquot v. United Healthcare Services of Delaware confirms, however, merely having a clause mandating that disputes be arbitrated is not be enough to ensure confidentiality. And there is no reason to leave this to chance.
In the Spring of 2016, Yvlande Boursiquot was a student beginning an unpaid internship with United Healthcare. As part of her onboarding with the company, Ms. Boursiquot was asked to sign an agreement entitled “Alternative Resolution for Conflicts Agreement,” and that Agreement included the following language:
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Except as it otherwise provides, this Agreement is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Agreement requires all such disputes to