Allan Dinkoff from Weil Gotshal & Manges LLP wrote an interesting piece discussing arbitration clauses after the U.S. Supreme Court ruling on Rent-A-Center, West. Dinkoff suggests writing two arbitration clauses in employment agreements:
The lessons to employers and others is clear. The agreement to arbitrate should contain two separate clauses, which should be made clearly independent.
The first clause should contain the agreement to arbitrate the underlying disputes, such as all claims arising out of or related to the employment, including but not limited to claims arising in tort or contract, claims for discrimination under federal, state or local law, claims for defamation, claims for or related to wages, including claims for unpaid wages, overtime and unlawful deductions from wages. (We leave to one side for now the issue of class action waivers or class arbitrations more generally.)
The second clause should contain the agreement to arbitrate all disputes relating to the interpretation, applicability, enforceability or formation of the agreement generally or the agreement to arbitrate, including, but not limited to any claim that all or part of the agreement generally or the agreement to arbitrate is void or voidable for any reason, including but limited to that it is a contract of adhesion, fails for lack of consideration, is procedurally or substantively unconscionable or is void as against public policy.
Read the full article here.