Category Archives: Arbitration

Social context and employment lawsuit dispute resolution

Source: Richard Posthuma, Gabriela Flores, James B. Dworkin, Samuel Pavel, International Journal of Conflict Management, Volume 27 Issue 4, 2016
(subscription required)

From the abstract:
Purpose: Using an Institutional Theory perspective, we examined employment lawsuits across case type and alternative dispute resolution procedures (negotiation, trial, arbitration).

Design/methodology/approach: We examined actual data from U.S. Federal court lawsuits (N = 98,020). The data included the type of lawsuit, the dispute resolution method used, and the outcome of the lawsuit in terms of the dollar amounts awarded.

Findings: The results show employers winning more in high social context cases (Civil Rights) than in other cases (ERISA). In negotiated settlements, plaintiffs received similar amounts across case types. In trials and arbitrations, outcomes were higher than settlements across case types. In arbitrations, plaintiffs received less in high social context cases (NLRA) than in other (ERISA) cases.

Practical implications: The results show that employers lose more often and in larger dollar amounts in arbitration than in litigation. However, if arbitration rulings more closely matched to the likely outcomes of trials then subsequent litigation would be less likely to be overturned and transaction costs would be reduced. Then the arbitration of employment lawsuits would more closely match the arbitration of contractual grievances under the typical labor relations system where the arbitrator’s decision is usually final and binding. This could be a better outcome for all stakeholders in the dispute resolution process.

Originality/value: This is the first study of its kind to examine actual workplace conflicts that result in employment-related lawsuits from the perspective of social contextual factors.

Unions battle employers that use arbitration to curb worker rights

Source: Dominique Paul Noth, People’s World, August 25, 2016

….Employment agreements requiring employees to submit workplace claims to an arbitrator rather than utilizing the courts have become increasingly commonplace. It is a favored tactic in avoiding or lowering the cost of litigation and an attractive way to prevent workers from realizing what they’re giving up. This tactic also abates these companies’ biggest fear, a class or collective action that gives workers a bigger say in how they are treated.

The August 22 decision is not only a big blow against employers, it has also exposed to the air the hidden seven-eighths of their iceberg attack on worker rights.

Most everyone is familiar with the top eighth of the iceberg. This is the ferocious direct and public assault on union coffers and members through right to work (for less) laws in 25 states and legislation like Wisconsin Act 10 that takes bargaining rights away from state workers except for fire and police unions that have supported Gov. Scott Walker. The tone of the battle has become familiar.

But while the public and most unions were focused on the surface, worker rights have been chipped away through methods like arbitration agreements, supposed human resource companies, designations as individual contractors and other sophisticated litigious tools that unions tend not to fight because the victims are not usually union workers.

Not anymore. Today you will find that union leaders and representatives are very active in training these workers, who may never even become union members, on worker rights and how to retain/recover them. ….

Will the Supreme Court Agree with the NLRB that Pre-Dispute Employment Arbitration Provisions Containing Class and Collective Action Waivers in Both Judicial and Arbitral Forums Violate the National Labor Relations Act – Whether There is an Opt-Out or Not?

Source: Christine Neylon O’Brien, University of Pennsylvania Journal of Business Law, Vol. 19, accepted (Forthcoming), 2016

From the abstract:     
Should employers be able to require individual employees to sign away their rights to collective action as a condition of employment? The National Labor Relations Board has held in D.R. Horton and Murphy Oil USA that when employers require employees to waive their right to “joint, class, or collective claims addressing wages, hours, or other working conditions against the employer in any forum, arbitral or judicial” as a condition of employment, this violates the NLRA. Even allowing prospective employees to opt out of such class waivers does not cure the violation in the NLRB’s view according to its decision in On Assignment Staffing Services. A circuit split has developed on enforcement of the Board’s orders on the class waiver issue with the Fifth Circuit denying the NLRB enforcement, the Seventh affirming the Board, and the Eight Circuit joining the Fifth. There are several appellate cases pending before the Ninth Circuit which has yet to fully develop its stance and approximately sixty class waiver cases pending on appeal. The Supreme Court will likely be faced with deciding one of these appeals soon. This article discusses the NLRB’s and courts’ positions from several recent cases involving class waivers in individual employment dispute agreements. It suggests how the courts and the Supreme Court should rule as well as the possibility of legislative action.

Start-Ups Embrace Arbitration to Settle Workplace Disputes

Source: Jessica Silver-Greenberg and Michael Corkery, New York Times, May 14, 2016

….As once-plucky start-ups like WeWork grow — the company’s work force has swelled to 1,500 from 300 a year ago — they are taking a page from the playbook of big corporations, which are increasingly using arbitration to thwart employees from bringing any meaningful legal challenge in court, an investigation by The New York Times found last fall…..

Beware the Fine Print
Source: New York Times, 2015-2016

Examining how clauses buried in tens of millions of contracts have deprived Americans of one of their most fundamental constitutional rights: their day in court.

PART 1 Arbitration Everywhere, Stacking the Deck of Justice
OCT. 31, 2015

PART 2 In Arbitration, a ‘Privatization of the Justice System’
NOV. 1, 2015

PART 3 In Religious Arbitration, Scripture Is the Rule of Law
NOV. 2, 2015

Efforts to Rein In Arbitration Come Under Well-Financed Attack
NOV. 15, 2015

Bipartisan Bill Would Protect Service Members’ Right to Avoid Arbitration
NOV. 20, 2015

Arbitration Is Target of New Bill in Senate
FEB. 4, 2016

Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract?
FEB. 22, 2016

House Democrats Call for Curbs on Required Arbitration
APRIL 14, 2016

Rule on Arbitration Would Restore Right to Sue Banks
MAY 4, 2016

Who’s Afraid of Collective Action?

Source: Kelsey Bleiweiss, OnLabor blog, April 1, 2016

The law of the workplace is in the midst of a critical debate about collectivity.

In case after case courts and the National Labor Relations Board have fought over the availability of collective action in two areas relevant to workers: class actions and class arbitration. (Union rights and collective bargaining represent a third area, but the debate over this kind of collective action is beyond the scope of this post.) These forms of collective legal action have been considered legitimate legal tools at one point, so why has recent law undercut workers who band together to use those tools?

Illinois HB 580: The Political Battle Over Interest Arbitration

Source: Kelsey Bleiweiss, On Labor blog, March 23, 2016

When it comes to labor news in Illinois, most attention is on the Chicago Teachers Union and its likely strike in April. But HB 580, a labor bill pending in Illinois, merits attention as well, as it has ignited fierce debate in the state for over a year. Though the future of the bill is uncertain, it raises important questions about public sector unions that have little choice but to engage with partisan politics.

Cutting Arbitration Classes: Facing Court Defeats on Workplace Waivers, the NLRB Refuses To Back Down

Source: Russ Bleemer, Alternatives to the High Cost of Litigation, Volume 34 Issue 1, January 2016
(subscription required)

From the abstract:
If 2015’s final quarter is viewed as a leading indicator, the New Year’s ADR landscape will be dominated by legal brawling over mandatory class-action waivers in employment arbitration. And the current battles put the issue closer to a conclusive U.S. Supreme Court decision on whether employers can force workers to agree to forego class actions in court or arbitration as a condition of taking their jobs.

Legal Challenges to Interest Arbitration: Evidence From Canada

Source: Joseph B. Rose, Labor Law Journal, Vol. 66 no. 3, Fall 2015
(subscription required)

Although interest arbitration in Canada is used in a variety of contexts, its widest application involves the settlement of disputes in essential services. For groups such as police, firefighters and hospital workers compulsory interest arbitration is a substitute for the right to strike. In some sectors of the economy where strikes are permitted, but could potentially pose a hardship or significant inconvenience, senior governments have intervened or threatened to intervene to preempt strike action or order striking workers back to work. In these circumstances, the disputes are usually referred to binding arbitration.

As in the United States, economic and political pressures have posed a threat to the efficacy of interest arbitration and contributed to calls to reform interest arbitration schemes in Canada. This paper examines recent legal developments involving the regulation of interest arbitration and assesses the relative strengths and weaknesses of these approaches to dispute resolution. The first section examines some attributes of an effective interest arbitration system and briefly reviews several controversies surrounding interest arbitration. Next, we assess the impact of recent legislation on interest arbitration. The ascendancy of government austerity policies following the global economic crisis has led to restrictive labor laws regulating public sector bargaining and limitations on the right to strike in the private sector. The impact of government intervention focuses first on temporal limits (wage restraint laws and policies) and permanent changes to interest arbitration statutes. This is followed by referrals to interest arbitration associated with ad hoc, back-to-work laws. Changes affecting interest arbitration have included format (conventional arbitration or final offer selection), the selection process for arbitrators and arbitral criteria. In the final section, we consider both the potential and future of interest arbitration….

Mediation, Arbitration, and Alternative Dispute Resolution (ADR)

Source: Carrie Menkel-Meadow, International Encyclopedia of the Social and Behavioral Sciences, Elsevier Ltd. 2015

From the abstract:
This entry for the International Encyclopedia of the Social & Behavioral Sciences, 2nd ed. defines and describes modern processes of dispute resolution beyond court adjudication, including negotiation, mediation, arbitration and a variety of new hybrid forms of dispute resolution (e.g. med-arb, summary jury trial, public policy consensus building) that are sued in both public and private disputes. The article reviews the history and theory behind these processes, outlining quantitative and qualitative reasons for their use and then reviews a variety of controversies association with their use, including the privatization of dispute resolution, difficulty in evaluating their effectiveness and power imbalances in their use. The aspirational qualities of process pluralism are contrasted to the realities of their use and cooptation in some contexts, such as when powerful private and public parties dictate the form that dispute resolution takes, without party consent.

Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights

Source: Judith Resnik, Yale Law School, Public Law Research Paper No. 543, April 30, 2015

From the abstract:
Two developments frame this discussion: the demise of negotiated contracts as the predicate to enforcing arbitration obligations under the Federal Arbitration Act and the reorientation of court-based procedures to assimilate judges’ activities to those of other dispute resolution providers. From 1925 until the mid-1980s, obligations to arbitrate rested on consent. Thereafter, the U.S. Supreme Court shifted course and enforced court and class action waivers mandated when consumers purchased goods and employees applied for jobs. To explain the legitimacy of precluding court access for federal and state claims, the Court developed new rationales — that arbitration had procedural advantages over adjudication, and that arbitration was an effective enforcement mechanism to “vindicate” public rights.

The result has been the mass production of arbitration clauses without a mass of arbitrations. Although hundreds of millions of consumers and employees are obliged to use arbitration as their remedy, almost none do so — rendering arbitration not a vindication but an unconstitutional evisceration of statutory and common law rights. The diffusion of disputes to a range of private, unknowable alternative adjudicators also violates the constitutional protections accorded to the public — endowed with the right to observe state-empowered decision makers as they impose binding outcomes on disputants. Closed processes preclude the public from assessing the qualities of what gains the force of law and debating what law ought to require. The cumulative effect of the Supreme Court’s jurisprudence on arbitration has been to produce an unconstitutional system that undermines both the legitimacy of arbitration and the functions of courts.