From Fisher Phillips, Thomas Birchfield reports on a new Kentucky statute that allows employers to require arbitration agreements as a condition of employment or continued employment. Thomas writes:
Kentucky Governor Matt Bevin signed into law Senate Bill 7 which brings Kentucky back in line with every other state by allowing employers to require employees to arbitrate claims as a condition of employment. The new law, signed yesterday, also allows employers and employees to contractually limit the time period in which employees must file employment-related claims and specifically allows an employer to require, as a condition of employment, a background check. This is all very good news for Kentucky employers.
Law Nullifies Recent Supreme Court Decision While Safeguarding Employee Rights
The law is a direct response to a recent Kentucky Supreme Court decision that significantly restricted the practice of arbitration for employment disputes. The 2018 ruling in Northern Kentucky Area Development Dist. v. Snydersent shockwaves through the state and caused many employers to immediately change a very common business practice by outlawing mandatory arbitration agreements that require applicants or employees to sign if they want to be hired or remain employed. That controversial decision made Kentucky the first and only state in the nation to implement such a restriction.
The Snyder decision held Kentucky Revised Statute (KRS) 336.700 prohibited employers from making arbitration of disputes a condition of employment. The state Supreme Court ruled that the statute was not preempted by the Federal Arbitration Act (FAA), a federal statute that, among other things, broadly protects arbitration agreements from state statutes such as these. The new law makes it clear that an employer may require an employee or applicant to execute an “agreement for arbitration, mediation, or other form of alternative dispute resolution as a condition or precondition of employment.”
While the law permits arbitration as a condition of employment, it also provides that arbitration agreements shall be subject to general contract defenses such as fraud, duress and unconscionability. Further, the law mandates certain specific safeguards for employees who are subject to arbitration, in accordance with the FAA.
First, the arbitration agreement must provide for a reasonable location for the arbitration. Second, the agreement to arbitrate must have mutuality of obligation sufficient to support the agreement to arbitrate. Third, there must be procedural fairness for the parties to access arbitration, including a fair process for selecting an impartial arbitrator and the equitable allocation of costs between the parties. Fourth, the agreement must ensure that the parties have at least one channel for the pursuit of a legal claim, either by requiring the claim to be arbitrated individually pursuant to the agreement or otherwise. Finally, the arbitrator must be empowered to award all types of relief for a particular claim that would otherwise be available in court, including punitive damages if applicable.