Waivers in Employment Applications Limit Workers' Time to Sue
Employers concerned about getting workplace litigation under control are including waivers in the employment application process to limit the time within which workers may sue. That is the practice of a growing number of employers ("Waivers Limiting Workers' Time to Sue Draws Fire") according to a report in Law.com, by Tresa Baldas of the National Law Journal.
The Law.com report quotes employment attorneys who represent management as supporting the idea because employers are burdened by lengthy statutes of limitation, litigation is growing and the waivers provide a useful risk management tool. They note that so far some courts have upheld the waivers.
The report notes that attorneys who represent workers are anxious to obtain personnel files when a dispute is brought to them so that they can become aware of what waivers their clients might have signed.
I will preface my remarks with the acknowledgment that I have not seen the language of any actual waivers, it is not clear what causes of action can be waived (discrimination? sexual harassment?) and we have not seen the decisions that upheld the waivers.
However, conceptually the requirement that a prospective employee waive statutes of limitation in the application for employment is probably a bad idea. These waivers would seem to be products of unequal and unfair bargaining positions; there is a question whether the waivers can be knowing waivers if the employment applicant is without counsel; and there is an implication that the waivers seem to give a license for conduct that has public policy considerations.
A qestion arises as to whether the waivers will reduce litigation or actually produce more litigation for employers.
Large employers may have the resources to work things out so that these waivers are enforceable and can continue to stand up to legal challenge. Also, large employers can offer other inducements to make up for the recruiting disadvantage that may result.
Employees should be wary of these waivers.
Relatively smaller employers should probably wait to see whether and how the law develops to accommodate these waivers. Their energies are better directed towards positive employment practices which help to avoid litigation and have the added benefit of creating a more productive working environment.
