Orrick follows Munger Tolles in dropping mandatory arbitration agreements: Will more firms follow?
If large law firms doing away with mandatory arbitration agreements for employees becomes a trend, plaintiffs may have the #MeToo movement and Twitter to thank.
On March 24, Ian Samuel, a lecturer at Harvard Law School, posted a tweet about Munger Tolles & Olson making summer associates sign “a very unusual agreement,” which he described as “plainly calculated” to shield the law firm from harassment claims. His tweets included pictures of the agreement in question, which stated that claims covered by the agreement included, but were not limited to, actions brought under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Fair Labor Standards Act.
Labor lawyers say mandatory arbitration agreements for law firm employees are in fact common. What’s unusual is that a day after Samuel’s series of tweets—rewtweeted around 600 times, “plus many more quote tweets,” Samuel told the ABA Journal—Munger Tolles in its own tweet announced that it would no longer require any employees, including summer associates, to sign mandatory arbitration agreements.
“In this case, we were wrong, and we are fixing it,” read the March 25 tweet, which was reported by the American Lawyer. When the ABA Journal asked Munger Tolles for a statement on summer associate situation, its practice development director responded with a statement that was the same language from the March 25 tweet.
Later on Monday, Orrick, Herrington & Sutcliffe also posted a tweet stating that it would no longer require any employees to sign “any arbitration agreements.”
A. Michael Weber, a Littler Mendelson employment law partner, said most large law firms have mandatory arbitration agreements for employees. But he thinks that more large law firm attorneys may be expressing unhappiness with the agreements, given the attention that high-profile sexual harassment allegations have brought to mandatory arbitration. Weber also says such agreements for summer associates could be unnecessary.
“I think that possibly requiring summer associates to sign this agreement was a bit of an overreach, and possibly triggered a greater reaction that was not expected by the firm,” says Weber, who is based in New York.
Various states are considering laws that would end mandatory arbitration and nondisclosure clauses in sexual harassment claims, says Ariana Levinson, a law professor at the University of Louisville whose work focuses on employment issues. Also, in March, 56 attorneys general signed a letter calling on Congress to end secret, mandatory arbitration for sexual harassment claims.
“Because of the #MeToo movement and these types of legislative proposals, many employers are aware of the importance of the issue, and some, like Munger Tolles, have done away with these provisions,” Levinson wrote in an email to the ABA Journal. “I think that as result of the #MeToo movement and public and client pressure that some big law firms, just like other employers, will back away from mandatory arbitration clauses, while others will continue to use them unless there is legislative change requiring them not to.”
Merrick Rossein, a professor at CUNY School of Law, says Munger Tolles likely responded to the matter on Twitter so quickly because it feared reputation damage.
“However, it is very important for law firms not to just respond to social media. The firms should take real proactive actions to restructure the culture of the law workplace, and critically, institute significant changes to its policies to address the fact that most women simply will not risk career suicide by making complaints of sexual harassment,” the employment law professor wrote in an email.
Law students echoed those concerns on Twitter.
“Many of us are not in a position to decline an offer from a top firm regardless of whether there is a mandatory arbitration clause. Firms who include one are aware of and exploiting that power differential,” tweeted Alyssa Leader, a law student at the University of North Carolina.
Law schools could play a role too, Texas lawyer Kristen Vander-Plas wrote in an op-ed piece for the ABA Law Student Division’s blog, Before the Bar.
“It is time for law schools, career-services personnel, law professors, recruiters and all others who assist law students in finding positions to stop engaging in passive information gathering and instead actively seek out the internal policies of firms and organizations invited to recruit their students,” wrote Vander-Plas, who practices at the Brad J. Davidson Law Firm in Lubbock. “Recognize the inherent power disparity and make a commitment to start evening the scale.”