Category Archives: Arbitration

Learn for Free: Law Courses & Lectures Online

Source: Inner Temple Library, Updated April 2019

From interactive courses spanning several weeks to quick introductory tasters, there is a huge amount of free learning materials available online. Covering a range of topics and jurisdictions, there’s something for everyone (so long as you’re into law)!
MOOCs, Tasters and Courseware
Lecture Collections and Podcasts
Open Access Books and Journals

Courses include:
Labor Law and Employment Discrimination
Missouri State University on YouTube

‘Legal, regulatory, and ethical issues related to employer-employee relationship, including employment-at-will doctrine, discrimination and union contracts.’

Law, Social Movements, and Public Policy: Comparative and International Experience
MIT Open Courseware

‘This course studies the interaction between law, courts, and social movements in shaping domestic and global public policy. Examines how groups mobilize to use law to affect change and why they succeed and fail. The class uses case studies to explore the interplay between law, social movements, and public policy in current areas such as gender, race, labor, trade, environment, and human rights. Finally, it introduces the theories of public policy, social movements, law and society, and transnational studies.’

Technology, Law, and the Working Environment
MIT Open Courseware

‘This course addresses the relationship between technology-related problems and the law applicable to work environment. The National Labor Relations Act, the Occupational Safety and Health Act, the Toxic Substances Control Act, state worker’s compensation, and suits by workers in the courts are discussed in the course. Problems related to occupational health and safety, collective bargaining as a mechanism for altering technology in the workplace, job alienation, productivity, and the organization of work are also addressed. Prior courses or experience in environmental, public health, or law-related areas will be useful.’

Law
Cornell University on iTunesU

‘Andrew D. White, Cornell’s first president, established a law school to produce “not swarms of hastily prepared pettifoggers, but a fair number of well-trained, large-minded, morally-based lawyers in the best sense.” Cornell Law graduates are found in major law firms and corporate law departments; and as public defenders or winning discrimination cases. Undergraduates can take courses in labor, business, and international law, and study the impact of a legal system on societies and individuals.’

Gender and the Law in U.S. History
MIT Open Courseware

‘This subject explores the legal history of the United States as a gendered system. It examines how women have shaped the meanings of American citizenship through pursuit of political rights such as suffrage, jury duty, and military service, how those political struggles have varied for across race, religion, and class, as well as how the legal system has shaped gender relations for both women and men through regulation of such issues as marriage, divorce, work, reproduction, and the family. The course readings will draw from primary and secondary materials in American history, as well as some court cases. However, the focus of the class is on the broader relationship between law and society, and no technical legal knowledge is required or assumed.’

Introduction to Alternative Dispute Resolution
Alison

‘The free online course Introduction to Alternative Dispute Resolution describes the benefits of using ADR as a conflict resolution method, how to prepare for an ADR process, and how confidentiality is maintained during the ADR process. The course also outlines both the common and uncommon methods of ADR and the situations in which each method can be used.’

Introduction to Copyright Law in America
MIT on Alison

‘With the wide-spread use of the Internet copyright has become a very important issue for publishers of books, music, software, films, television programmes and many other industries. This free online course is an introduction to copyright law as practised in the United States, however, the principles and concepts will be of interest to legal professionals in other jurisdictions. The course reviews the structure of copyright under federal law, the basics of legal research and legal citations. It examines copyright and its applications in the music and broadcasting industries, and looks at legal cases involving examples such as Napster, Grokster and peer-to-peer file sharing services. It also reviews software licensing, and the General Public License and free software. This course will be of great interest to legal and business professionals who would like to learn more about copyright law and how it is practised in the United States, and to students who are pursuing a career in the legal professions and would like to learn more about this very important legal topic.’

Employee Voice in Arbitration

Source: Ann C. Hodges, Employee Rights and Employment Policy Journal, Vol. 22, No. 2, 2018, Posted: April 5, 2019

From the abstract:
The Supreme Court’s 2018 decision in Epic Systems v. Lewis allows employers to force employees to agree to individual arbitration of any claims against the employer, removing their ability to bring class and collective actions. These unilaterally imposed arbitration agreements deprive employees of any voice in this important term of employment.

If arbitration is to serve its intended function of a mutually agreeable forum to resolve disputes, Congress should require employers who desire to use arbitration to negotiate the terms of the agreement with a representative of their affected employees. Such a requirement would reduce some of the adverse effects of employment arbitration, making it more like labor arbitration, which has functioned as an effective dispute resolution mechanism under collective bargaining agreements for many years.

A negotiation requirement would insure that employees have notice of the arbitration provision and input into its terms. The National Labor Relations Board could use its existing election machinery to facilitate employee choice of representative which could be an individual, a group of employees, an attorney, a labor union, or another workers’ rights organization. In addition to providing employee voice, requiring negotiation would discourage arbitration where the employer’s only goal is to reduce employee rights and might also spur employee participation in the workplace and the community.

A U.S. Woman Industrial Relations Pioneer and “Mother of Arbitration”: The Life and Times of Jean T. McKelvey

Source: Dr. Victor G. Devinatz, Labor Law Journal, Vol. 70 Issue No. 1, Spring 2019
(subscription required)

Due to the explosive growth in union membership in the United States from 1935 to 1945, industrial relations as a field of academic study emerged in the late 1940s with universities, such as Cornell University, University of Minnesota, University of Wisconsin and University of Illinois, establishing industrial relations institutes and centers which provided both academic degrees and extension programs in the discipline. The union membership spurt from 1935 to 1945 was due to various factors. These elements included the passage of the pro-labor 1935 National Labor Relations Act (NLRA) and the December 1935 organization of the Committee for Industrial Organization, later renamed the Congress of Industrial Organizations (CIO) in 1938, combined with the growth and stabilization of the industrial unions during World War II. These things set the stage for the inauguration of the academic study of U.S. industrial relations. Virtually all interest and labor arbitrators, some of whom became professors in these industrial relations institutes and centers, were men who had been active as third-party neutrals during the golden age of U.S. labor circa 1945 to 1980. These individuals obtained their initial training and experience while serving in government organizations, such as the National War Labor Board (WLB) and other government-related agencies, during the Second World War. While a number of these male industrial relations pioneers, such as Benjamin Aaron, Ted Kheel and Charles Killingsworth, for example, are well known as industrial relations academics and arbitrators, less is known about Jean Trepp McKelvey, a woman industrial relations pioneer and arbitrator who was a contemporary of Aaron, Kheel and Killingsworth.

Thus, the purpose of this article is to critically analyze the background and career of McKelvey as an industrial relations academic and arbitrator who has been referred to as the “mother of arbitration.” I will argue in this article that McKelvey’s pioneering and innovative work in developing and utilizing fieldwork methodologies in teaching economics and industrial relations classes at Sarah Lawrence College and then in her early years as a Cornell University faculty member is consistent with her use of fieldwork in her early scholarship as well as becoming active in arbitration and third party dispute resolution. Engaging in such activities as a mediator, fact finder and arbitrator can be viewed as constituting “fieldwork experiences for professors” and informed her teaching as an industrial relations professor. McKelvey believed that industrial relations professors should be active in teaching, research and extension work and decried Cornell University’s downgrading of extension work for industrial relations professors by the early 1990s. One of McKelvey’s major research projects, which involved the use of fieldwork, was the practice of union-management cooperation within the American Federation of Labor (AFL) in the 1920s, the subject matter of her undergraduate honors thesis as well as her doctoral dissertation. Nevertheless, throughout her life, McKelvey remained skeptical that the utilization of union-management cooperation, when it became popular once more in the 1980s, could be used as a successful strategy to revitalize unions and help them grow while leading unions to have more collective bargaining power…..

Forced Arbitration Clauses in the #MeToo Era

Source: National Women’s Law Center, Fact Sheet, February 2019

People from all walks of life – from hotel housekeepers to famous actresses – are stepping forward to confront sexual harassment and violence. Yet too often, forced arbitration clauses buried in everyday contracts help companies cover up sexual harassment and violence. These forced arbitration clauses prevent survivors from fighting back. Forced arbitration clauses are buried in the fine print of many employment contracts and strip away our right to challenge wrongdoing in court. In private arbitration, companies often choose and pay the arbitrator. There is no judge, no jury, no public record, and no meaningful chance to appeal the arbitrator’s decision – even if the arbitrator gets the facts wrong or ignores the law.

Workplace discrimination claims fare poorly in arbitration, study says

Source: Phil Ciciora – University of Illinois at Urbana-Champaign, phys.org, December 19, 2018

The use of arbitration to adjudicate worker complaints – and avoid costly litigation through the slow, unwieldy public court system – has been a controversial practice since its usage began to increase in the 1990s. And according to a new paper co-written by a University of Illinois expert in workplace dispute resolution, certain types of cases fare worse than other types that are resolved through arbitration.

Employee discrimination claims largely received worse outcomes in arbitration than other work-related disputes such as wrongful termination or breach of contract, says new research from J. Ryan Lamare, a professor of labor and employment relations at Illinois.

Following the passage of anti-discrimination laws such as Title VII of the 1964 Civil Rights Act, employees commonly adjudicated workplace claims through litigation. But over the past three decades, the U.S. Supreme Court has sought to expand the use of private arbitration as an alternate dispute-resolution mechanism, Lamare said…..

Related:
Resolving Discrimination Complaints in Employment Arbitration: An Analysis of the Experience in the Securities Industry
Source: J. Ryan Lamare, David B. Lipsky, ILR Review, Volume 72 Issue 1, January 2019
(subscription required)

From the abstract:
This article empirically examines whether employment discrimination claims differ from other types of disputes resolved through arbitration. Whether arbitration is appropriate for resolving violations of anti-discrimination statutes at work is a focus of ongoing policy debates. Yet empirical scholarship has rarely considered whether different types of complaints might have distinct characteristics and receive varied outcomes in arbitration. The authors analyze all of the employment arbitration awards for cases filed between 1991 and 2006 in the financial services industry to determine whether differences in the type of allegation affect award outcomes. They also examine the effects of the financial industry’s decision in 1999 to introduce voluntary arbitration for discrimination claims. Results indicate that discrimination claims largely fared worse in arbitration than did other statutory or non-statutory claims but that arbitration systems are capable of meaningful self-reform.

Lowe’s Is Making Managers Sign Arbitration Agreements If They Want Their Bonuses

Source: Dave Jamieson, Huffington Post, May 29, 2018

We’re going to see a whole lot more of these “voluntary” agreements after last week’s Supreme Court ruling.

Lowe’s has a message for its store managers: Sign this or else.

Salaried managers and assistant managers at the big-box home improvement retailer are being required to enter binding arbitration agreements under the threat of losing their valuable bonuses, according to a copy of the contract obtained by HuffPost.

By signing the contract, managers agree they won’t take Lowe’s to court with any claims or join in class-action lawsuits against the company. Instead, any grievance they have must be taken individually and in private to an arbitrator ― an arrangement that could significantly cut back workers’ legal claims of unpaid work. ….

Related:
The Supreme Court’s Arbitration Ruling Is Already Screwing Thousands Of Chipotle Workers
Source: Dave Jamieson, Huffington Post, May 27, 2018

The burrito chain has asked a court to exclude 2,814 workers from a massive wage theft lawsuit because they signed mandatory arbitration agreements.

Editorial: Forced arbitration hides workplace abuses. No one should forfeit rights for a job
Source: Sacramento Bee, May 24, 2018

Forced Arbitration
Source: Economic Policy Institute, 2017

Forced arbitration, especially where it prohibits the use of a class action of any kind, can be very destructive of employee rights, undermines labor standards, and contributes to wage suppression, discrimination, and poorer working conditions.

The Supreme Court Favors Forced Arbitration at the Expense of Workers’ Rights
Source: Galen Sherwin, ACLU Women’s Rights Project, May 22, 2018

The #MeToo movement has offered an important lesson on the collective power of voices joining together to take on individual experiences of injustice. On Monday, the Supreme Court dealt a huge blow to precisely this kind of collective power, ruling against the ability of workers to join together to take on employment discrimination and abuse.

The court ruled that employers are free to force workers who have been victims of unfair labor practices into private arbitration to address their claims — even in cases where workers sought to bring a collective legal action. The decision came in a case about failure to pay overtime, but its implications are far broader and extend to many of the claims of harassment and discrimination that have surfaced thanks to the #MeToo and #TimesUp movements…..

Consumer Arbitrations with The American Arbitration Association 2009 to Present

Source: Yale Law School Consumer Arbitration Data Archive, Last Updated: May 24, 2018

This website reposts data previously posted on the American Arbitration Association’s website: https://www.adr.org/consumer. The AAA describes the data on their website: “The AAA maintains an online Consumer Arbitration Statistics report based on consumer cases filed with the AAA for at least the last five years. This report is made available pursuant to state statutes such as the California Code of Civil Procedure §1281.96 and Maryland Commercial Law §§ 14-3901 to 3905 and updated quarterly, as required by law.”

In practice, each time the AAA adds the latest quarter of data, it takes down the earliest quarter. This website aids researchers by retaining the data each quarter in exactly the format in which it was originally posted. We are retaining and posting this data because we have found it useful in trying to understand the effect of mandates for consumers to arbitrate.

Caveats are in order. A first limitation of the data is the absence of access to the underlying materials, which are held privately. As the AAA explains, it does not independently verify what arbitrators report to it. A second problem is that coding errors can occur at both individual and aggregate levels. For example, when researching consumer arbitration between 2015 and 2016, we identified sixty-two cases in the set that were described as seeking the same amount ($607,525.40) and in which each consumer was listed as having received the same award ($585.71). AAA research staff responded to our inquiries, identified a computer coding error affecting these cases as well as other cases, and posted corrected data. But no red flags told other researchers that the data had been corrected. Thus, a vivid example of a potential error may be found through culling thousands of entries and then seeking clarification, but the general public has no systematic method of checking the accuracy of the data posted by AAA. ….

Another site that has usable AAA data is Level Playing Field (http://levelplayingfield.io), and there could be other sites as well. ….

Sexual Harassment Cases Go Uncounted as Complaint Process Goes Private

Source: Jeff Green, Bloomberg, April 23, 2018

Even as women have begun speaking out about sexual harassment at work, the number of official complaints to state and federal regulators hit a two-decade low in 2017.

The federal Equal Employment Opportunity Commission and its state-level counterparts received just over 9,600 complaints in 2017, according to data obtained by Bloomberg, down from more than 16,000 in 1997—a 41 percent drop.