The results of Harvard Law School’s 2019 survey on forced arbitration are in. If you’re a law student hoping to work for a law firm, here’s what you need to know.
What is forced arbitration?
Hidden in the fine print of many employment contracts, forced arbitration clauses require you to sign away your right to sue when you experience illegal treatment at work, like sexual harassment, racial discrimination, or wage theft. Along with class action waivers and non-disclosure agreements, these coercive contract terms force employees to bring claims in a secretive, private arbitration process that is stacked in favor of employers.
Even though forced arbitration clauses have proliferated in employment contracts in recent years, the tide may be turning. Top law firms across the country are conceding to pressure from their future employees on their forced arbitration policies. Following student advocacy campaigns in the spring of 2018, over 40 law schools surveyed employers who recruit on their campuses, asking that they disclose their policies surrounding the use of forced arbitration and non-disclosure agreements for employment-related disputes for the first time.
Which firms are still using forced arbitration?
This year, Harvard Law School took an important step by requiring all law firms who recruit at HLS to disclose their forced arbitration policies. In order to participate in the Early Interview Program (EIP), Harvard’s on-campus private-sector hiring process, employers had to answer two questions:
- Does your firm require summer associates or first-year associates to sign a mandatory arbitration contract, regarding certain or any types of disputes, as a condition of employment?
- Does your firm require any employees to sign a mandatory arbitration contract, regarding certain or any types of disputes, as a condition of employment? This includes both legal and non-legal employees.
The People’s Parity Project updated what we know about firms using forced arbitration with the 2019 survey results. The survey reveals the diminishing use of forced arbitration in top law firms’ employment contracts. Over 92% of employers that responded said that they did not use forced arbitration agreements for summer or first-year associates. And nearly 86% of those employers said that they did not subject any employee to forced arbitration.
These numbers represent a decline in the number of firms that reported using forced arbitration since last year. In 2018, 18 law firms indicated that class of 2018 or 2019 associates would be subjected to forced arbitration. This year, only 11 firms indicated that the practice applied to summer or first-year associates.
Why are firms dropping forced arbitration?
Over the past year, we’ve seen what happens when activists shine a spotlight onto law firms’ coercive contract practices. Kirkland & Ellis LLP had been using forced arbitration for over ten years, but last year, along with half of the law firms that were surveyed, they refused to disclose their policies. On November 12, we kicked off our #DumpKirkland campaign by releasing a copy of the firm’s forced arbitration agreement.
By Thanksgiving, Kirkland announced that it was doing away with mandatory arbitration for associates and summer associates; just a few weeks later, Kirkland finally confirmed it was dropping forced arbitration for all of its employees, not just associates. Shortly after, Sidley Austin and other firms followed suit, updating their policies before they became our next hashtag.
These responses overwhelmingly demonstrate that firms across the country recognize forced arbitration is a bad move. Just ask Choate, Hall & Stewart LLP. When asked if they used forced arbitration, their response was short and to the point: “Never and never would.”
Despite the growing consensus that forced arbitration hurts workers, some firms like DLA Piper and Venable LLP have refused to give in, denying or defending their policies. And many more law firms are attempting to evade scrutiny by obscuring their practices. In 2018, over half of the firms surveyed by law schools refused to disclose their policies on forced arbitration.
This year, law firms couldn’t do that without giving up their opportunity to recruit at Harvard. But that’s exactly what many employers have opted to do rather than be honest about their use of forced arbitration. Only 141 firms responded to Harvard’s 2019 survey—less than half of the firms that responded to the survey last year.
PPP is calling on all law schools to take action against firms who are trying to hide their use of forced arbitration. While we appreciate that Harvard is making firms own up to their policies, we need real consequences.
Merely disclosing which firms require employees to sign coercive contracts is not enough. Disclosure simply places the burden on students most at risk of workplace misconduct—principally women, people of color, members of the LGBTQ community, and people with disabilities—to opt out of certain opportunities. It should be an employer’s responsibility to create fair policies that don’t deprive workers of their access to justice.
That’s why we’re calling on law schools everywhere to ban firms that force their employees into arbitration. When companies engage in policies that hurt vulnerable workers, they should not be permitted to recruit on campus, period.
What can you do?
Until schools commit to taking a stand, students will continue to be confronted with employers who proudly stand by their coercive contracts. So what does this mean, if you’re a law student looking to work for a firm?
First, do your research. Before you bid on a firm, look at our current survey data to see if they make employees sign forced arbitration clauses, class action waivers, or non-disclosure agreements. If you’re an HLS student, you can access more information on Harvard’s “Arbitration Agreements” page on the website. If you end up receiving an offer from a firm that uses forced arbitration you can try to negotiate it out of your contract. But it’s better to head this problem off at the pass.
We’re asking our fellow law students headed into recruitment season this year: Don’t interview with any law firm that makes any of their employees—no associate, paralegal, custodian, or contractor—sign these coercive contracts. We’re also asking student groups at law schools around the country who may be sponsored by firms using forced arbitration: Refuse sponsorships from these firms until they drop forced arbitration and other coercive contracts for all of their employees.
But even if every law firm stopped making their employees sign coercive contracts, we can’t stop there. More than half of non-union private-sector workers are subject to forced arbitration. Lawyers draft these contracts for their clients, lawyers fight to enforce them, and lawyers ultimately decide whether a claimant gets to have their day in court. The People’s Parity Project is fighting to end coercive contracts not just for ourselves, but for workers and consumers everywhere. Join us!