For employees, simply being aware of an arbitration policy that deals with the company that is setting the arbitration is usually enough to create an enforceable agreement. The so-called arbitration agreement in Kubala included a « delegation clause. » The clause means that it applies not only to the content of a worker`s dispute (i.e. whether or not the employer has breached the FLSA), but also to all matters relating to the applicability of the arbitration agreement itself. As a result, the court said, the case must go to arbitration, so that the arbitrator (not the court) can decide whether the agreement requires Kubala to disclose his claims in the circumstances of this case. (Of course, the private arbitrator will have financial incentives to decide that the case should be decided by arbitration, not by a judge.) In SK Plymouth, LLC et al. v. Simmons, the applicant, filed an unlawful cease-and-deseful action against its former employers SK Plymouth, LLC, SK E-P Operations America, LLC (SKEPOA) and its former superiors (the « complainants ») who claimed that their employment had been terminated in the human resources department in retaliation for the reporting of harassing behaviour by its supervisor. In particular, the applicant claimed that her superior had abused her on the basis of her gender, race, age and national origin and that after reporting her behaviour to human resources, she had been exposed to a hostile work environment and was eventually dismissed. On the basis of an arbitration agreement signed by the applicant at the beginning of her employment, the complainant filed a motion to impose arbitration proceedings under the Federal Arbitration Act (FAA). The agreement provided for a signing ban for the company, but was never signed by a company representative. The applicant submitted that the arbitration agreement was not an enforceable and binding contract since it had not been signed by SKEPOA. The Fair Labor Standards Act (FLSA) is a federal law that governs certain working conditions, including the right to overtime pay.
However, some employment contracts remain largely governed by national law and, in countries such as Texas, employers are often able to use public law to their advantage. For example, Texas employers may force workers to accept a binding arbitration agreement that deprives them of the right to assert their rights under the FLSA and similar labour laws in court. Knowing the pros and cons of arbitration can help decide each specific case, whether it should go to arbitration. There are a few pockets in the state, where lawyers, employees still vigorously fight their clients` arbitration agreements signed with employers to arbitrate all disputes.