Yes, they can, but they have to be reasonable and they cannot impose burdens on the employee beyond what they would have if they were going to court. For example, if filing a case in court costs $200.00 for the filing fee, if you require the employee as part of the arbitration agreement, well you have to pay for the arbitration, which could be $5,000.00 or $10,000.00 or you have to split the cost of the arbitration. If you’re putting burdens on the employees such that it would be more than what they would experience if they were filing in court, those kinds of agreements could be deemed unenforceable.

You also have to make sure that the employee understands that they are engaging in an arbitration agreement and there are some limitations on statute of limitations effects. For example, an arbitration agreement could limit the statute of limitations for filing a common law claim, but statutory claims you cannot affect the employee’s right to bring those claims within a certain timeframe. So is the statutory timeframe is you have to bring the claim within a year. An employer’s part of arbitration agreement cannot say well you have to bring a claim within 60 days.