Category Archives: Dispute Resolution

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. ….

How to Break an NDA, See If Your Pay Is Fair, Confront a Colleague, and More

Source: Mary Pilon, Bloomberg, May 1, 2018

Practical advice on some of the most uncomfortable—and important—things you could do for your career.

Related:
Employee Rights
Source: NOLO, 2018

Can you be required to take a drug test? Who is entitled to earn overtime? What kinds of conduct fall under the definition of illegal discrimination and harassment — and what should you do if you are a victim? Can you take time off work to care for a new child, serve in the military, cast your ballot, or recover from a serious illness? Get detailed answers to all of your questions about workplace rights here.

Your Workplace Rights
Source: Workplace Fairness, 2018
Hiring & Classifications
Looking for a new job? Wondering if the questions you were asked at the interview were legal? This section addresses some of the most common issues you may encounter in the hiring process, and how you are classified as a worker may affect your workplace rights.

Discrimination
Are you being treated differently at work? If so, is it because of your race, sex, age, disability, national origin or religion? Wondering what other kinds of discrimination are illegal? Get the facts on workplace discrimination here.

Harassment & Other Workplace Problems
Whether you’re being pressured to have sex with your boss, forced to listen to foul language or slurs, or wondering whether the comment you made might get you in trouble, you’ll find this information on harassment and other problems you might encounter on the job to be helpful.

Unpaid Wages/Wage & Hour Problems
Not getting paid what your employer owes you? Are you forced to work overtime, but not receiving any extra pay? Get the facts on “wage and hour” laws here.

Benefits & Leaves
For most employees, your job isn’t just about the pay, but also what benefits are included. Sick leave, disability leave, family/medical leave–the different kinds of leave you may be allowed to take can be confusing. Get information about health care coverage, pensions, leave eligibility and other benefit-related information here.

Privacy & Workplace Surveillance
Is somebody watching you? It just might be your employer. Find out here what rights to privacy in the workplace you do and do not have.

Health & Safety/Workplace Injuries
Is your workplace unsafe? Are you worried about getting hurt at work? Wondering what to do about it? Have questions about the workers’ compensation system? Find the answers here.

Whistleblowing & Retaliation
Fighting back when you see your employer doing something wrong can be scary, and risky. But there are laws that can protect you in a number of situations. Learn more about how you might be protected when you blow the whistle or challenge illegal conduct.

Unions & Collective Action
Facing an organizing campaign at work (or want to get involved in one)? Already a union member but don’t understand how things work? Fired for organizing or joining a union? This section covers information about your rights to organize and be in a union, and how unions work.

Termination & Unemployment
Whether you were suddenly fired, laid off, or asked to resign, you’ll want to know what happens now that you are out of a job.

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.

The growing use of mandatory arbitration

Source: Alexander J.S. Colvin, Economic Policy Institute, April 6, 2018

Access to the courts is now barred for more than 60 million American workers.

This is an expanded version of a report originally published in September 2017. The report now includes data on mandatory arbitration by employer size, state, industry, gender, race, average employee wage, and typical employee education level.

From the summary:

In a trend driven by a series of Supreme Court decisions dating back to 1991, American employers are increasingly requiring their workers to sign mandatory arbitration agreements. Under such agreements, workers whose rights are violated—for example, through employment discrimination or sexual harassment—can’t pursue their claims in court but must submit to arbitration procedures that research shows overwhelmingly favor employers.

In reviewing the existing literature on the extent of this practice, I found that the share of workers subject to mandatory arbitration had clearly increased in the decade following the initial 1991 Court decision: by the early 2000s, the share of workers subject to mandatory arbitration had risen from just over 2 percent (in 1992) to almost a quarter of the workforce. However, more recent data were not available. In order to obtain current data for this study, I conducted a nationally representative survey of nonunion private-sector employers regarding their use of mandatory employment arbitration.

This study finds that since the early 2000s, the share of workers subject to mandatory arbitration has more than doubled and now exceeds 55 percent. This trend has weakened the position of workers whose rights are violated, barring access to the courts for all types of legal claims, including those based on Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Fair Labor Standards Act.

The Supreme Court is currently considering a case challenging the inclusion of class action waivers in arbitration agreements. Class action waivers bar employees from participating in class action lawsuits to address widespread violations of workers’ rights in a workplace. The Court will rule on whether class action waivers are a violation of the National Labor Relations Act; their decision could have wide-reaching implications for workers’ rights going forward.

Related:
Press release

The Strong Do as They Can: How Employment Group-Action Waivers Alienate Employees

Source: Matthew B. Seipe, Labor & Employment Law Forum, Volume 7 Issue 1, Article 4, May 2017

If an employer steals a group of employees’ wages, those employees are free to file a group-action lawsuit at the local courthouse to recover those wages. However, by contractual agreement, some employers require their employees to individually arbitrate their employment claims. These agreements, what this article refers to as compulsory group-action waivers, support the view that “the strong do as they can, while the weak suffer what they must.” Here, the “strong” employer requires the employee to sign away her right to join co-workers and publicly sue the employer. The waiver makes the employee “weak” through alienation –a concept refined and examined by sociologists, psychologists, theologians, and philosophers –by decreasing the employee’s power, meaning, community, and self-actualization in the workplace and society.

The Limits of Comprehensive Peace: The Example of the FLSA

Source: Lonny Hoffman, Christian J. Ward, Yetter Coleman, University of Houston Law Center No. 2016-A-19, August 6, 2016

From the abstract:
Normally, cases can be settled on broad terms that release all related claims. Although there are added protections that must be satisfied when a settlement is proposed in the class action context (which are provided by insisting on judicial approval of the proposed deal), even then the class representatives and defendant can usually agree to compromise the class’s ability to later bring all transactionally-related claims. But how should the law deal with cases that involve multiple claims with different claim-vindication procedures? In this paper we consider the FLSA, which is one of the most important examples of such a law. For decades, courts have consistently held that workers aggrieved by an employer’s statutory violations may not use modern opt-out class action procedures to vindicate their rights. A frequently litigated, but unsettled question is whether a class action brought alleging state law wage and hour claims can be settled on terms that require absent class members to release both state and federal claims, even though the federal claims could not have been asserted through the class suit. We argue that this form of settlement is not permitted by the statutory text and that our construction is consistent with the legislative history.

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.

Use Of Collective Bargaining History in Arbitration

Source: Tom Barnes, Dispute Resolution Journal, Volume 68, No. 4, 2013
(subscription required)

It is somewhat ironic that while all collective bargaining agreements (“CBAs”) have their genesis in bargaining history, the origins and evolution of a collective bargaining provision is not often offered evidence in an arbitration hearing. As an advocate for nearly 40 years, I seldom offered such testimony. That may emanate from the fact that 70% of my cases were discharge or discipline matters under just cause provisions and bargaining history is usually of little significance. This may be due to a variety of other factors, viz: the authors are not available to testify; the origins are forgotten by succeeding negotiators on both sides of the table; bargaining notes, much less minutes, were not kept or are indiscernible . . . the sum of which is that the collective history is lost. With that lost history, any chance of demonstrating the real intent of the parties or disabusing an arbitrator of what appears to be plain meaning of a CBA provision evaporates as well. This is not a law review article. These are observations from four decades of negotiating labor agreements for both management and labor. That was in the setting of where the “sausage was being made” and thus these are reflections not from the flight deck but the bilge deck. In that connection, fine points of evidence such as relevancy, admissibility, hearsay, attorney-client and work product privileges, and parol evidence, all relevant in the admission of bargaining history, are not the focus. Rather, the practical aspects of how CBAs are negotiated and how arbitrators may consider such recorded labor history, is the focal point.