Arbitration agreements, in an employment setting, have increasingly proven not to be the panacea employers had hoped for in resolving disputes with former employees. Higher than expected costs, along with the lack of procedural protections found in the judicial system, have made mandatory arbitration a less appealing choice.

In continued efforts to streamline dispute resolution (and minimize costs), employers may wish to explore the potential for including jury waiver agreements in employment agreements. Such waivers eliminate the risk and uncertainty juries can bring to the litigation process, while allowing employers to retain the benefits of that process, including structured discovery and the potential for summary judgment. Jury waivers are, however, far from a certain solution at this point. State and federal courts have reached disparate results regarding their enforceability, and case law regarding such agreements in the employment setting is to date rare.

Courts appear to subject such agreements to a "knowing and voluntary" standard for enforceability. Factors considered by the courts include whether the terms of the agreement were negotiated (or negotiable), the conspicuousness of the jury waiver within the agreement, the relative bargaining power of the parties, and the business acumen of the party challenging the agreement (here, the employee). Negotiation appears to be of particular importance; inclusion of such a provision in a company's stock agreement may not be enforceable. In addition, courts look to see how much bargaining power the employee had; agreements that are presented as "take it or leave it" and which are required for continued employment may again be found to be unenforceable.

In the right situation, a jury waiver provision in employment agreements may help employers to control the risk faced when a former employee engages in litigation against the company. Such provisions will require careful thought and execution, however, to maximize their enforceability.