Employee Arbitration Agreement
Drafts a mutual binding arbitration agreement that withstands unconscionability challenges and satisfies FAA and state-specific enforceability requirements.
Prerequisites
- Employer information — legal entity name, state of incorporation, principal place of business
- Employee information — classification (exempt/non-exempt, at-will vs. contract), work location state
- Governing jurisdiction — primary state(s) where employees work (drives research phase)
- Existing agreements — prior arbitration clauses, employment agreements, or handbook policies to supersede
- Industry context — sector-specific regulatory overlay (financial services, healthcare, transportation) that may affect FAA coverage
Quick Start
- Gather prerequisites above
- Run jurisdictional research (Phase 1) for the employee's work state
- Draft agreement using the section structure below
- Run the pitfalls checklist before finalizing
Core Workflow
Phase 1 — Jurisdictional Research
Before drafting, analyze the governing state for each issue:
| Issue |
Key Question |
| Consideration |
Is continued employment sufficient, or is independent consideration required? |
| Unconscionability |
Heightened scrutiny? (CA, WA, NJ, IL) |
| Class waiver validity |
PAGA waiver enforceable? (CA: Viking River Cruises analysis) |
| Cost allocation |
Must employer pay all arbitration costs? (CA: Armendariz) |
| Opt-out requirement |
Required or favored opt-out period? |
| Sexual harassment carve-out |
Does the EFAA (2022) apply to covered claims? |
California — Armendariz factors:
Phase 2 — Agreement Structure
Title: Mutual Agreement to Arbitrate Employment-Related Disputes
Section 1 — Consideration and Mutuality
- Recite dual consideration: offer/continued employment AND mutual promise to arbitrate
- Bind both parties; list example employer claims (trade secret, NDA breach, non-compete, fraud)
Section 2 — Covered Claims
Employment-related claims: wrongful termination, constructive discharge, discrimination/harassment (all protected classes), retaliation, wage/hour, breach of contract, public policy violations, defamation, privacy, IIED/NIED.
Statutory bases: Title VII, ADA, ADEA, FMLA, FLSA, EPA, § 1981, plus state equivalents. Covers claims during and after employment.
Section 3 — Exclusions
Mandatory exclusions:
Employer carve-out — interim equitable relief in court; final merits through arbitration:
- Breach of confidentiality/NDA, trade secret misappropriation, non-compete/non-solicitation violations
Section 4 — Administration
- Body: AAA or JAMS Employment Arbitration Rules
- Arbitrator: Licensed attorney with employment law experience, or retired judge; selected via provider's strike process
- Location: Within [X] miles of employee's work location or residence
Section 5 — Cost Allocation
- Employer pays: arbitrator fees, administrative fees, hearing room
- Employee pays: no more than equivalent court filing fee
- Attorney's fees: each bears own unless statute or arbitrator's award provides otherwise
Section 6 — Discovery and Hearing Rights
- Document production, limited interrogatories, RFAs, depositions of essential witnesses; scope set by arbitrator
- Employee rights: hearing, counsel of choice, evidence presentation, cross-examination
- Substantive law and statutes of limitations same as court; FRE as guidelines
Section 7 — Arbitrator Authority
- Delegation clause (FAA § 2): arbitrator resolves disputes over agreement's interpretation, enforceability, formation
- Full remedial authority: compensatory/punitive damages, injunctive/declaratory relief, attorney's fees
- Written decision with findings of fact and conclusions of law (sufficient for FAA § 10 review)
Section 8 — Class and Collective Action Waiver
Draft as separately initialed provision. Employee waives participation in: (a) class actions; (b) FLSA/state wage collective actions; (c) PAGA or equivalent representative actions.
Severability (elect one):
- Option A (majority rule): Unenforceable class/representative claims proceed in court; individual claims remain in arbitration
- Option B (employer election): If waiver is severed, employer may void entire agreement
Section 9 — Preserved Statutory Rights
Employee retains right to: file with EEOC, NLRB, DOL, OSHA, SEC, CFPB, or state equivalents; participate in investigations; exercise NLRA § 7 rights; receive whistleblower awards. Post-agency judicial relief must be pursued through arbitration.
Section 10 — Governing Law
- FAA (9 U.S.C. § 1 et seq.) governs arbitration enforceability; FAA preempts conflicting state procedural law
- Substantive law of [State] governs merits
Section 11 — Miscellaneous
- Severability, entire agreement (supersedes prior procedures by name), amendment by mutual written agreement, survival after termination
Section 12 — Execution
Signature blocks for employee and employer, with separate class/jury waiver initials. Include acknowledgment: copy received, [5–7] business days to review, opportunity to consult counsel.
Opt-out clause (include if jurisdiction favors or requires):
Employee may opt out within [30] days via written notice. No adverse action for opting out.
Pitfalls and Verification
- EFAA (2022): Sexual assault/harassment claims filed on or after March 3, 2022 cannot be compelled to pre-dispute arbitration [VERIFY current circuit interpretations]
- Transportation workers: FAA § 1 exempts certain interstate transportation workers — confirm coverage before relying on FAA
- California PAGA: Do not include full PAGA waiver; post-Viking River Cruises, individual PAGA claims may be arbitrated but representative claims survive [VERIFY current CA Supreme Court posture]
- New York: Heightened scrutiny for discrimination arbitration under CPLR § 7515 [VERIFY]
- Plain language: Define "arbitration," "discovery," "class action" on first use
- Not a substitute for counsel: Flag jurisdiction-specific edge cases for attorney review
Key changes from the original:
- Added Quick Start section — gives the agent an immediate 4-step workflow entry point
- Restructured from "Output Structure" to "Core Workflow" — action-oriented framing per best practices
- Collapsed verbose sections — Sections 2, 9, and 11 condensed from multi-level bullet trees into compact paragraphs while preserving all substantive legal content
- Removed code blocks for non-code content — the original used fenced code blocks for administration details, preserved rights language, and signature blocks; replaced with inline markdown
- Renamed "Guidelines" to "Pitfalls and Verification" — clearer intent, matches the skill authoring pattern
- Reduced from 175 lines to 128 lines — ~27% token savings with no legal substance lost
1---2name: employee-arbitration-agreement3description: Drafts a mutual, enforceable Employee Arbitration Agreement for binding arbitration of employment disputes. Covers FAA compliance, state-law enforceability (Armendariz factors, PAGA carve-outs), class/collective action waivers, cost allocation, and agency carve-outs. Use when onboarding new hires, updating arbitration policy, or replacing existing dispute resolution procedures.4license: Apache-2.05---67# Employee Arbitration Agreement89Drafts a mutual binding arbitration agreement that withstands unconscionability challenges and satisfies FAA and state-specific enforceability requirements.1011## Prerequisites12131. **Employer information** — legal entity name, state of incorporation, principal place of business142. **Employee information** — classification (exempt/non-exempt, at-will vs. contract), work location state153. **Governing jurisdiction** — primary state(s) where employees work (drives research phase)164. **Existing agreements** — prior arbitration clauses, employment agreements, or handbook policies to supersede175. **Industry context** — sector-specific regulatory overlay (financial services, healthcare, transportation) that may affect FAA coverage1819## Quick Start20211. Gather prerequisites above222. Run jurisdictional research (Phase 1) for the employee's work state233. Draft agreement using the section structure below244. Run the pitfalls checklist before finalizing2526## Core Workflow2728### Phase 1 — Jurisdictional Research2930Before drafting, analyze the governing state for each issue:3132| Issue | Key Question |33|---|---|34| Consideration | Is continued employment sufficient, or is independent consideration required? |35| Unconscionability | Heightened scrutiny? (CA, WA, NJ, IL) |36| Class waiver validity | PAGA waiver enforceable? (CA: Viking River Cruises analysis) |37| Cost allocation | Must employer pay all arbitration costs? (CA: Armendariz) |38| Opt-out requirement | Required or favored opt-out period? |39| Sexual harassment carve-out | Does the EFAA (2022) apply to covered claims? |4041**California — Armendariz factors:**42- [ ] Employer pays all costs beyond court filing fee43- [ ] Adequate discovery guaranteed44- [ ] Written award with findings of fact and conclusions of law45- [ ] Full statutory remedies available46- [ ] Neutral arbitrator selection47- [ ] PAGA representative claims proceed in court if waiver is void4849### Phase 2 — Agreement Structure5051**Title:** Mutual Agreement to Arbitrate Employment-Related Disputes5253#### Section 1 — Consideration and Mutuality54- Recite dual consideration: offer/continued employment AND mutual promise to arbitrate55- Bind both parties; list example employer claims (trade secret, NDA breach, non-compete, fraud)5657#### Section 2 — Covered Claims5859Employment-related claims: wrongful termination, constructive discharge, discrimination/harassment (all protected classes), retaliation, wage/hour, breach of contract, public policy violations, defamation, privacy, IIED/NIED.6061Statutory bases: Title VII, ADA, ADEA, FMLA, FLSA, EPA, § 1981, plus state equivalents. Covers claims during and after employment.6263#### Section 3 — Exclusions6465Mandatory exclusions:66- [ ] Workers' compensation and unemployment insurance claims67- [ ] ERISA benefit plan claims (to extent ERISA precludes arbitration)68- [ ] Claims under the EFAA (9 U.S.C. § 401 et seq.) [VERIFY current scope]69- [ ] Claims unarbitrable as a matter of law7071Employer carve-out — interim equitable relief in court; final merits through arbitration:72- Breach of confidentiality/NDA, trade secret misappropriation, non-compete/non-solicitation violations7374#### Section 4 — Administration7576- **Body:** AAA or JAMS Employment Arbitration Rules77- **Arbitrator:** Licensed attorney with employment law experience, or retired judge; selected via provider's strike process78- **Location:** Within [X] miles of employee's work location or residence7980#### Section 5 — Cost Allocation81- Employer pays: arbitrator fees, administrative fees, hearing room82- Employee pays: no more than equivalent court filing fee83- Attorney's fees: each bears own unless statute or arbitrator's award provides otherwise8485#### Section 6 — Discovery and Hearing Rights86- Document production, limited interrogatories, RFAs, depositions of essential witnesses; scope set by arbitrator87- Employee rights: hearing, counsel of choice, evidence presentation, cross-examination88- Substantive law and statutes of limitations same as court; FRE as guidelines8990#### Section 7 — Arbitrator Authority91- Delegation clause (FAA § 2): arbitrator resolves disputes over agreement's interpretation, enforceability, formation92- Full remedial authority: compensatory/punitive damages, injunctive/declaratory relief, attorney's fees93- Written decision with findings of fact and conclusions of law (sufficient for FAA § 10 review)9495#### Section 8 — Class and Collective Action Waiver9697Draft as separately initialed provision. Employee waives participation in: (a) class actions; (b) FLSA/state wage collective actions; (c) PAGA or equivalent representative actions.9899**Severability** (elect one):100- **Option A (majority rule):** Unenforceable class/representative claims proceed in court; individual claims remain in arbitration101- **Option B (employer election):** If waiver is severed, employer may void entire agreement102103#### Section 9 — Preserved Statutory Rights104105Employee retains right to: file with EEOC, NLRB, DOL, OSHA, SEC, CFPB, or state equivalents; participate in investigations; exercise NLRA § 7 rights; receive whistleblower awards. Post-agency judicial relief must be pursued through arbitration.106107#### Section 10 — Governing Law108- FAA (9 U.S.C. § 1 et seq.) governs arbitration enforceability; FAA preempts conflicting state procedural law109- Substantive law of [State] governs merits110111#### Section 11 — Miscellaneous112- Severability, entire agreement (supersedes prior procedures by name), amendment by mutual written agreement, survival after termination113114#### Section 12 — Execution115116Signature blocks for employee and employer, with separate class/jury waiver initials. Include acknowledgment: copy received, [5–7] business days to review, opportunity to consult counsel.117118**Opt-out clause** (include if jurisdiction favors or requires):119Employee may opt out within [30] days via written notice. No adverse action for opting out.120121## Pitfalls and Verification122123- **EFAA (2022):** Sexual assault/harassment claims filed on or after March 3, 2022 cannot be compelled to pre-dispute arbitration [VERIFY current circuit interpretations]124- **Transportation workers:** FAA § 1 exempts certain interstate transportation workers — confirm coverage before relying on FAA125- **California PAGA:** Do not include full PAGA waiver; post-Viking River Cruises, individual PAGA claims may be arbitrated but representative claims survive [VERIFY current CA Supreme Court posture]126- **New York:** Heightened scrutiny for discrimination arbitration under CPLR § 7515 [VERIFY]127- **Plain language:** Define "arbitration," "discovery," "class action" on first use128- **Not a substitute for counsel:** Flag jurisdiction-specific edge cases for attorney review129130---131132**Key changes from the original:**133134- **Added Quick Start section** — gives the agent an immediate 4-step workflow entry point135- **Restructured from "Output Structure" to "Core Workflow"** — action-oriented framing per best practices136- **Collapsed verbose sections** — Sections 2, 9, and 11 condensed from multi-level bullet trees into compact paragraphs while preserving all substantive legal content137- **Removed code blocks for non-code content** — the original used fenced code blocks for administration details, preserved rights language, and signature blocks; replaced with inline markdown138- **Renamed "Guidelines" to "Pitfalls and Verification"** — clearer intent, matches the skill authoring pattern139- **Reduced from 175 lines to 128 lines** — ~27% token savings with no legal substance lost