More About Kirkland's New Mandatory Arbitration Policy
Here's some interesting follow-up to yesterday's post about the new mandatory arbitration policy that Kirkland & Ellis has imposed upon its associates. From Karen Donovan, over at Portfolio.com:
There have been many stories about how the big law firms coddle associates with lush perks and big bonuses. Now there is some tough love. Kirkland & Ellis has sent a memo to its associates informing that should there be a dispute with their employer that cannot be resolved internally, they will have to go arbitration, rather than court.The new policy, first reported by David Lat of the AboveTheLaw.com blog, asks employees to hit the "acknowledge" tab on this e-mail by March 3.
If you're a K&E associate hoping to escape the clutches of the new policy, good luck (unless you're in California):
"Continued employment in most states is adequate compensation for an arbitration procedure," says Michael Casey III, a Miami partner with Epstein Becker & Green, a law firm that specializes in employment and labor issues. Casey has advised a number of firms to put mandatory arbitration policies in to place. He says a number of big law firms have them, but he declined to name names.There's still hope for those Kirkland associates who toil in the firm's Los Angeles and San Francisco offices. A decision from the United States Court of Appeals for the Ninth Circuit struck down a mandatory arbitration policy at O'Melveny & Myers. The Ninth Circuit has generally found "these are contracts of adhesion or unconscionable," says Gary Friedman, an employment partner with Weil, Gotshal & Manges. But Friedman says arbitration agreements are "still relative rarities" in the world of law firms.
K&E itself stayed mum on the subject: "'We don't comment about employment matters,' says Jay Lefkowitz, a New York partner on the firm's global management committee."
No Court for These Lawyers [Portfolio]
(28) Comments
The world is a bitter place.
Skadden has required mandatory arbitration for at least 3 years. I thought it was industry standard.
im in ur commentz, dissin ur story
Thanks for the kitty cat, lat. Can we have more?
K&E asoseeutz, u gt pwned
Cute kitty!
One of the reasons I became an attorney was to leave abusive practices like this behind.
thks Lat, ur post iz teh awesome
kthnxbai
moar legal lolcats. MOAR!!!
Yeah, I'm a bit surprised they didn't have this earlier, because lawyers of all people should be afraid of the courts!
But I bet this policy has much less to do with a different decision-maker and much more to do with confidentiality. I bet the new policy has a "no talking to ATL" clause.
How is this policy going to go over w/ Illinois courts? I know the 7th Circuit is very employer friendly, but my take is that the state is not as accepting of mand arb as other states, like California. I think that's particularly true w/ the state court.
this doesn't help firms. generally, employment cases are thrown out on summary judgment. in arbitration, summary judgment is next to impossible to get. so, now we can sue away and greatly increase the nuisance value of our lawsuit.
LET ME SHOW YOU MY ARBITRATION POLICIES
Let me show you them.
It will be interesting to see how the BIGLAW associates who defend mandatory arbitration policies when they are forced upon employees at client corporations like Best Buy or Circuit City feel when they are forced into the same deal. Might be regretting all the time they spent making these policies legally bullet proof.
I believe the Weil partner misstates California law on the subject. In the Luce Forward case, the Ninth Circuit upheld the validity of continued employment as consideration for a mandatory arbitration clause (the case just happened to involve a law firm employer). The OMM arbitration policy was struck down because its terms did not meet the Armendariz (sp?) requirements. In other words, the geniuses at OMM didn't know how to craft an enforceable mandatory arbitration agreement because they included onerous terms in the agreement. But one would have to assume that KE learned from OMM's mistake, and has crafted an enforceable policy. The fact that acceptance of the agreement is a requirement of continued employment definitely does not render the agreement per se unenforceable.
Maybe they should be "Arbitration Firm of the Year" and return the litigation firm award back to American Lawyer.
[16:376] Employee's Agreement to Arbitrate No Bar to EEOC Action: An employee's agreement to arbitrate all employment disputes with the employer does not affect the EEOC's right to commence proceedings against the employer to enjoin future Title VII violations or recover victim-specific judicial relief on behalf of the employee. However, the employee's failure to mitigate damages or acceptance of a monetary settlement from the employer limits any recovery by the EEOC on the employee's behalf. [See EEOC v. Waffle House, Inc. (2002) 534 US 279, 297, 122 S.Ct. 754, 765–766; and ¶ 7:992]
Whether an arbitration award affects the validity of the EEOC's claim or the character of relief the EEOC may seek is an open question. [EEOC v. Waffle House, Inc., supra, 534 US at 297, 122 S.Ct. at 766; see ¶ 7:992]
what's the big deal? is the AAA pro-employer or something?
curious if these u.s. entities will realize this may not work in overseas offices.
3:18, the big deal is not so much the arbitration, but the required confidentiality. The only leverage associates have is (a) voting with their feet (quitting) and (b) throwing sunshine (via a publicly filed complaint and the concomitant media exposure) on the horrid treatment they are subject to by firms. Now, even if they are in a position to do (a), option (b) is foreclosed to effectively remediate prior wrongs.
SOOOOOO glad I got out of law firm life.
The dike has broken. Every firm will go the arbitration route soon.
BTW, David, you spelled "your" correctly in the LOLCAT. 20 demerits.
Lat, I dunno how you stole her, but let my cat out of your file cabinet!
They didn't send this to the California Associates
"They didn't send this to the California Associates."
False. I got it on 2/20, a little after noon. Recheck your inbox.
Still got the biggest bonuses.
Paul Hastings requires this. You have to sign a written agreement to submit all disputes to arbitration when you begin your employment with them.
O'Melveny has required this for several years. According to the memo, anyone who continued to be employed by the firm after a specified date is deemed to have consented to an internal grievance procedure and arbitration.
Why is there any big surprise?. BigLaw firms increasingly support BigBusiness in its campaign to make all employees "independent contractors" or "consultants" to whom fewer legal duties are owed.