Employer's Exclusive Control over Selection of Arbitrators Held Invalid (original) (raw)
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The forum for adjudication of employment disputes
Research Handbook on the Economics of Labor and Employment Law, 2012
This paper asks what institutional arrangements for adjudicating workplace rights disputes would best resolve those disputes in a fair, efficient manner for workers, managers and the public generally. Concerning legislative attempts to prohibit employment arbitration, we argue in favor of predispute arbitration. If properly structured and regulated, arbitration is preferable to courts because it offers a lower-cost, less-formal forum, thereby improving the likelihood that employees, and most especially low-earning employees, will be able to obtain a hearing on the merits of their disputessomething almost always unachievable in the civil litigation realm. Employerpromulgated ADR should be the basis of an employment adjudication system that supplements the work of courts, administrative agencies and, in the union sector, the grievance and arbitration process. If starting from scratch and without regard to political realities, we would be inclined urge adoption of institutional arrangements similar to Great Britain's system. The UK model started as a wrongful dismissal statute, and over time also assumed adjudicatory authority over discrimination claims. The UK system mixes government-supplied mediation services with a tripartite government-funded, public adjudication. The system supersedes any common law cause of action for breach of the employment agreement and employment statutes; employment disputes that go to the regular civil courts are limited to libel and slander, certain torts and claims for injunctive relief for breach of restrictive covenants. Class actions are not authorized. We discuss the practical and political feasibility of importing elements of this system to the United States.
Employment dispute resolution: The case for mediation
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E mployment dispute resolution (EDR) addresses conflict arising out of a continuing or terminated employment relationship. Typical cases include complaints of discrimination under state and federal equal employment opportunity (EEO) law; wrongful discharge under state law; whistle-blower retaliation; workers' compensation; wage and hour violations; occupational safety disputes; breach of contract; alleged violations of administrative policies on performance evaluation, supervision, or assignment of duties; communication problems in the chain of command; and similar matters. These claims are often outside the scope of a collective bargaining agreement. In the employer context, programs may exist in a nonunion workplace, or they may coexist with a union grievance procedure (Lipsky, Seeber, and Fincher, 2003). However, there are also programs offered by administrative agencies and courts for resolving employment disputes. Whether employer based or third party, programs may offer a variety of interventions, including an ombuds, early neutral assessment, fact finding, peer panels, mediation, or arbitration, or some combination of these. Research on and evaluation of EDR has been influenced by the extensive literature on voice and grievance systems (
British Journal of Industrial Relations, 2006
In this paper, we survey the underpinnings of the trend towards employment arbitration in the United States, and its implications for the broader industrial relations system. Specifically, we address the question of whether or not employment arbitrators have been substituted for collective bargaining by the government to an extent that warrants their inclusion as an actor in the industrial relations system. We review developments in workplace dispute resolution in the United States, the literature that attempts to explain these developments and posit an assessment of the stability of employment arbitration, and employment arbitrators, as a central feature of the US industrial relations system.
Legal and Procedural Strategies for Employees Utilizing Arbitration for Statutory Disputes
Employee Responsibilities and Rights Journal, 2000
This article ยง reviews the current United States law regarding arbitration of statutory disputes in the nonunion employment setting. The article is a literature review and offers no new research findings but rather focuses on the important legal and procedural strategies employees may use throughout the arbitration process. The article specifically advises the reader on selection of an attorney, selection of an arbitrator, selection of a third party administrator, the discovery process, and the requisite hearing procedure. Possible challenges to the arbitration process are also discussed. In addition, the article focuses on the advantages and disadvantages of arbitration from an employee's point of view.