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Jury Waivers: A Viable Alternative to Forced Arbitration?

by | Feb 5, 2021 | ADA, Arbitration |

It is not uncommon for employment agreements to contain “forced arbitration agreements.”  Under such agreements, employees are required as a condition of their employment to forgo litigation in court and instead submit their claims to arbitration.  Back in 2018, thousands of Google employees participated in a mass walkout to protest the company’s mandatory arbitration policy, and in 2019, Google agreed to put an end to forced arbitration.

Critics of forced arbitration agreements argue that they are less likely to result in a fair outcome and are not actually any faster or cheaper than litigation.  Nonetheless, if an employer wants to avoid the unpredictability that comes with juries, one alternative to forced arbitration is a jury waiver.

The 7th amendment and Maryland state law provide for a general right to have one’s case heard by a jury.  Additionally, Title VII and the ADA specifically provide for jury trials in discrimination cases.  Nonetheless, courts will generally enforce contracts that waive jury trials as long as the contracts were entered into knowingly and voluntarily.  Having one’s claim heard by a judge, as opposed to a jury, can actually be beneficial in some cases.  Particularly in cases with that involve complex facts or technical legal analysis, it might be preferable to have judges, rather than laypeople, determine the outcome.  On the other hand, if a case its relatively simple, and instead hinges largely on arguments that appeal to notions of fairness, an employee might prefer a jury to a judge.  Additionally, juries are more likely to award large damages, as opposed to judges, who tend to exercise more restraint.

In determining whether a jury waiver is knowing and voluntary, courts will consider various factors:

  • Does the waiver specifically outline statutes under which the employee is waiving a jury (e.g., Title VII or the ADA), or does it use broad language instead?
  • Is the waiver conspicuous, or is it buried in the middle of a lengthy and complicated contract?
  • Is the language of the waiver unambiguous, such that a layperson could understand it?
  • Were the terms of the agreement negotiated over, and was there a significant disparity in bargaining power between the employer and the employee?
  • Is the employee who signed the agreement educated?
  • Was the employee given a reasonable period of time to review the waiver and discuss it with an attorney?

In order to ensure that their waivers are enforceable, employers should make sure that they are in writing, unambiguous, conspicuous, and clearly communicated to employees.  Employees should be given the opportunity to review the agreement and discuss it with an attorney.  If you have any questions about jury waivers, or any other area of employment law, contact Thatcher Zavaro & Mani at 301-850-1246www.ThatcherLaw.com.  Follow us on: