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Department Of Defense Final Rule Bars Mandatory Arbitration

A final rule published in the December 8 Federal Register provides that the Department of Defense (DOD) is now barring certain defense contractors and subcontractors from requiring employees or independent contractors arbitrate sexual assault or Title VII sexual harassment claims.

Specifically, the rule implements a provision of the 2010 defense appropriations act that bars defense contractors from using the appropriations act funds in excess of $1 million unless the contractors agrees not to require arbitration of the legal claim as a condition of employment.

In some cases arbitration is a positive alternative to litigation. It is similar to a private trial without a jury in which you and your employer select the judge. Rather than going to court, the parties select a neutral decision-maker and work together to establish procedural rules. Arbitration may be a quicker and less expensive than traditional litigation.

In other cases, however, arbitration is not the best solution. An arbitrator may have a very different outlook on a case than a jury. The arbitrator may not allow the employee sufficient access to documents or witnesses under the employer’s control. Since the arbitrator is typically paid by employer, there can be questions about the arbitrator’s neutrality. And the arbitration hearing, unlike a case in court, is usually held in private and not subject to public scrutiny. The Buckley Law Firm believes that arbitration should be reserved for cases in which both sides want their case decided by an arbitrator.

Here, the final rule barring mandatory arbitration arose out of the highly publicized treatment of Jamie Leigh Jones, a Halliburton employee who was allegedly gang raped by other employees while working in Iraq. However because her employment agreement specified that her only recourse was arbitration, she was unable to bring criminal or civil charges.

If you are applying for a job or recently accepted one, you should contact an experienced employment attorney to help negotiate any arbitration clause and ensure your rights are protected. For more information, contactThe Buckley Law Firm, LLC.

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