Category Archives: Arbitration

Judge Barrett’s Arbitration Decisions

Source: Lise Gelernter, Workplace Prof Blog, September 28, 2020

Lise Gelernter (Emeritus Professor & Visiting Scholar, Buffalo) sends this guest post about two arbitration decisions authored by SCOTUS nominee Amy Barrett: Wallace v. Grubhub Holdings, Inc., No. 19-1564 (7th Cir. 2020) and Herrington v. Waterstone Mortgage, No. 17-3609 (7th Cir. 2018):

On a substantive level unrelated to the confirmation of Judge Barrett, both decisions illustrate the intricacy of two of the many unanswered questions the Supreme Court has left concerning arbitration: 1) who falls under the exemption from the FAA for what the Court called “transportation workers”? and 2) which issues of “arbitrability” does a court or an arbitrator decide?

New Labor Viscerality? Work Stoppages in the ‘New Work,’ Non-Union Economy

Source: Michael Duff, St. Louis University Law Journal, Forthcoming, Date Written: June 28, 2020

From the abstract:
The COVID-19 work stoppages involving employees refusing to work because they are fearful of contracting coronavirus provides a dramatic opportunity for newer workplace law observers to grasp a well-established legal rule: both unionized and non-union employees possess rights to engage in work stoppages under the National Labor Relations Act. This article explains that employees engaging in concerted work stoppages, in good faith reaction to health and safety dangers, are prima facie protected from discharge. The article carefully distinguishes between Section 7 and Section 502 work stoppages. Crucially, and contrary to Section 502 work stoppages, the health and safety-related work stoppages of non-union employees, protected by Section 7, are not subject to an “objective reasonableness” test.

Having analyzed the general legal protection of non-union work stoppages, and noting that work stoppages have been on the increase during the last two years, the article considers when legal protection may be withdrawn from such concerted activities because employees repeatedly and unpredictably engage in them—so called “unprotected intermittent strikes.” Discussing a recent NLRB decision, the article argues for an explicit and strengthened presumption of work stoppage protection for employees who are wholly unaffiliated with a union, even when those employees engage in repeated work stoppages in response to discrete workplace disputes or dangers.

Next, the article grapples with looming work stoppage issues emerging from expansion of the Gig economy. When workers are not “employees,” peaceful work stoppages may become increasingly subject to federal court injunction. The Norris-LaGuardia Act (the venerable 1932 federal anti-injunction law) does not by its terms apply to non-employees, possibly including putative non-employee Gig workers, raising the specter of a new era of “Government by Injunction.” Under existing antitrust law, non-employee workers may be viewed as “independent businesspeople” colluding through work stoppages to “fix prices.” The article argues that First Amendment avoidance principles should guide Sherman Act interpretation when non-employee worker activity does not resemble price fixing; and that, consistent with liability principles articulated in the Supreme Court’s recent opinion in Sessions v. Dimaya, antitrust law’s severe penalties should not be applied to Gig workers given the ambiguities in federal and state law employee definitions.

Finally, the article considers the potential for non-union private arbitration agreements exercising restraints on the NLRA rights of employees to engage in work stoppages in light of the Supreme Court’s labor law-diminishing opinion in Epic Systems.

A Tale of Two Forums: Employment Discrimination Outcomes in Arbitration and Litigation

Source: Mark Gough, ILR Review, OnlineFirst, Published April 24, 2020
(subscription required)

From the abstract:
This article presents data from a novel survey of 1,256 employment plaintiff attorneys to test whether employee rights and remedies are affected by mandatory employment arbitration. By surveying attorneys directly about their most recent employment discrimination cases taken to verdict in arbitration and civil litigation, the author presents a systematic empirical comparison of outcomes between civil courts and arbitration with robust controls. The ability to control for the legal basis of the claim, defendant size, use of summary judgment, and attorney and plaintiff characteristics significantly improves on previous empirical research studies. Consistent with previous research, employee win rates in arbitration are lower than those found in state and federal court. In addition, monetary award amounts and percentage of claim amount awarded to employees who prevail in their cases are significantly lower in arbitration compared to outcomes in state and federal jury trials.

Privatizing Employment Law: The Expansion of Mandatory Arbitration in the Workplace

Source: Sarah Staszak, Studies in American Political Development, First View, July 7, 2020
(subscription required)

From the abstract:
This article examines the institutional, political, and legal development of employment arbitration as it shifted from a Progressive Era form of justice enhancement to one co-opted by business-friendly conservatives arguably more concerned with protecting employers from litigation. While arbitration has a long history in the United States, the expanding use of mandatory, employer-promulgated arbitration clauses has more than doubled since the 2000s. In examining the nature of the shift, this article argues that it occurred through a gradual process of conversion in three institutional realms (1) legislative conversion, (2) private-sector conversion of public regulation, and (3) judicial conversion. Facilitated by a growing divide among Democrats on the value of arbitration, conservatives began to promote it in the 1970s and 1980s as backlash to the expansion of statutory employment rights. I argue that they did so by converting the institutional infrastructures of labor and commercial arbitration, a process continued by the private sector and Supreme Court. As such, this article argues that conversion is the product of multiple actors targeting multiple institutions, over decades, and with consequences for both the literature on institutional change and conceptions of equality under the law.

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.