Executory Arbitration Employment arbitration is on the rise and for good reason. Over the last twenty-to-thirty years there has been an increase in civil litigation. Unfortunately, the court system has not met the demand for increased litigation through additional judicial appointments or the hiring of additional resources to contend with the insurmountable caseloads. Today, the court system has turned to arbitration as an alternate means of resolution, if for anything else, to reduce the cumbersome caseloads traditionally associated with litigation. Moreover, companies today are requiring employees to sign arbitration agreements as a condition of employment. Unlike the court system, employers look at employee arbitration agreements …show more content…
The act essentially aligns executory arbitration with other contract positions and removed the judicial prejudice the process previously received. Historically, this form of arbitration was used primarily in collective-bargaining among unions. However, flourishing in the more favorable legal climate, arbitration, formerly a strictly voluntary process used primarily by arm’s-length disputants, began to be adopted wholesale by large organizations to deal with disputes involving consumers, employees, and other “little guys” (Coltri, 2010). More importantly, arbitration agreements of this type obligate employees to waive any rights to litigation, in the event either party elect to participate in the binding arbitration outlined in the employment agreement. While the employer considers the benefits afforded employment arbitration, many feel the employee is exposed to extreme risk by consenting to such agreements. Employees that are forced to participate in arbitration based on allegations of race, sex and age discrimination are less likely to be properly represented by the law. Based on the previous example, many believe disputes between employers and employees should be litigated, rather than …show more content…
Understanding the advantages and disadvantages of arbitration versus litigation can educate employees preparing to sign employer imposed employment agreements. Two-fold, employers should develop and implement employment agreements that serve the goals and objective of the company while preserving the rights and protection each employee is afforded under the law. The arbitration process involves two parties that are in a dispute, and they use an impartial third party to seek resolution in a private venue. Litigation on the other hand is a formal process, which utilizes a court-of-law in a public venue. The privacy afforded by arbitration is attractive to employers because it can keep the subject of the arbitration sealed. However, if an employee’s rights are being violated, it can be difficult for the employee to address the violations. The speed and cost of arbitration weigh in favor of both parties. Regardless of the situation, it is in the best interest of both parties to resolve the issue as quickly as possible with minimal costs. On the other hand, litigation can take months to schedule and cost significantly more money to hear the case tried in court. Based on these examples, employers will work to develop and implement agreements that focus
However, the ruling in this case and others like it prove that employers can, in fact, be bound by articles written in an employee handbook when disciplining or discharging an employee. An abysmally written handbook can greatly jeopardize an employer’s right to terminate at will. Trends show that courts are increasingly acknowledging enforceable promises in the past employment practices of firms, in employer handbooks and in oral commitments. In addition to including an at-will disclaimer in employee handbooks, employers should also require employees to sign an acknowledgment confirming that they understand and agree to employment-at-will and that at-will employment can at any time be modified by a written agreement. Personnel manuals should explicitly state that the employer reserves the right to terminate employment at will. All written policies should also be free of any language that could be considered as a guarantee of job security. To be sure that these common pitfalls are avoided employers must retain the service of a labor attorney to draft and air-tight employee manual and acknowledgment
There has always been a need for conflict resolution on the job. The grievance and arbitration process is one way for employees to be heard when conflict on the job arises. The grievance and arbitration process is also a way for employees to obtain some type of satisfaction at the end of the grievance process. Having representation by the union often guarantees an employee a fair, just, and timely grievance process. However, not all employees feel that way when they are not a represented the union. The grievance process can mean different things to each individual employee and usually no two complaints are normally about the same type of issue.
Due process is the ethical means by which ending employment contracts is best administered. It allows for repercussions for unfair firing practices on the part of the employer, who in all actuality, carries the power in the relationship. Due process allows for an appeal when an employee believes they were terminated without or with bad cause. In essence it polices the employer to act ethically in situations where a person’s wealth and career are at stake. At will contracts in the business world are often defended on the basis that they are equally beneficial to the employer and employee. This is quite obviously not the case in modern business and economic conditions. It is stated by Richard Epstein in “In Defense of the Contract at Will” that if a person enters into a disastrous and one-sided contract that they are free to exit the contract and pursue other means of employment.3 This is hardly the case, however, as when a person has a family, and of course themselves, to support leaving a disastrous situation is not always
I feel the labor relations system as currently constituted is effective for resolving disputes as long as both parties are committed to negotiating in good faith. Although, I feel the current system is effective a further explanation of the systems strengths and weaknesses will better explain the effectiveness of resolving disputes. It is in both the companies and the labor interest to negotiate with as little third party interaction to come up with an agreement. In times when there are disputes their different course of action that start from a least costly without giving up power in the decision to the possibility of becoming more costly to either party and give up the power in the decision. As discussed in the text when an organization and labor cannot come up with an agreement a third party may be asked to come in to negotiations to resolve a dispute which includes mediation, fact-finding, and interest arbitration.
In the case of Nino v. The Jewelry Exchange, there were allegations brought forth by Rajae Nino who felt he was discriminated against by his former employer, on the account of his gender and national origin. When he was employed with said employer, he was given a copy of the company’s employment contract by the human resources manager and instructed him to read it and sign it without affording him any opportunity to negotiate over its terms. With most discrimination cases, “the EEOC encourages the parties to discrimination charges to use mediation” (Walsh, p. 20), with this case the employer invoked an arbitration provision in Nino’s employment contract wherein the Court of Appeals decided the arbitration agreement was unconscionable and therefore unenforceable. On the flip side, if the unconscionable terms were removed from the contract, the remainder of the employment contract could be enforced.
More companies are turning to alternate dispute resolution (ADR) as an alterative to the judicial system for settling employee disputes. There are some clear advantages and disadvantages to ADR for both employers and employees. The best-designed ADR programs are those that are fair and impartial. A good ADR program should seek to find the best possible outcome for both parties while saving time and money and preserving relationships. The least effective ADR programs tend to be unfair and perpetuate the imbalance and bargaining power discrepancy frequently found in employer-employee relationships.
The legal process within the human resources department tries to format strategies and alliances that avoid negative activities affecting the employers and employees; however, exhibitions using common sense or compassion can conflict with these guidelines creating inappropriate behaviors. If this becomes the case, disciplinary actions begin bringing about other matters of legal issues. Nevertheless, once an individual believes they have been illegally mistreated, they become more apt to submit a lawsuit for purposes of revenge, financial struggles, or inapt employment securities (Alboher, 2012).
The law clearly states the Supreme Court has held that binding arbitration is equally applicable to both parties. The law also states that “An employee’s agreement to arbitrate is clear when the employee signs an application form or agreement requiring arbitration, receives something of value from the employer, and is given a copy of the relevant arbitration rules.” CITATION Bag10 \p 92 \l 1033 (Bagley & Savage, 2010, p. 92)There is of course the possibility of recourse for the terminated employee, Mr. Compton, in a lawsuit filed by the EEOC (Equal Employment Opportunity Commission0. The law states that “The EEOC may file a claim in court on its own behalf against an employer, even if the employee involved had entered into an enforceable
Before business law class, I was not aware of how frequently arbitration is incorporated in contracts. Directly after watching Hot Coffee, I read through a recent internship offer. Almost hidden on the page, an arbitration clause was included. Before watching the film, I did not realize how much impact arbitration can have on a case, as depicted through Jamie Leigh Jones. As a result, I thought about the potential implications of my signature before moving forward. Jamie Leigh Jones’ case showed me that significant terms can be hidden in a contract, but be completely legal. This stresses the importance of reading documents before signing
Arbitration is a method to submit a resolution in an arbitral, rather than a judicial forum. For non-labor issues, arbitration can be a less expensive solution. One example is The Home Owners ' Warranty program. A program which aimed to resolve disputes between homeowners and builders. The program was designed between the Home Owners ' Warranty programs of the National Association of Home Builders. This program started in 1973 as a method of formally resolving disputes through arbitration. The program provided a warranty program, using mediation, and arbitration to resolve differences. Before the warranty program was created, the National Association of Home Builders came to the Federal Mediation and Conciliation Service for advice and assistance on dealing with homeowner disputes. Over the years, the program has expanded across the country through the Magnuson-Moss Bill, assisting the Federal Trade Commission on issuing rules on warranty’s and guaranties. The arbitration occurs while looking at the evidence of a dispute objectively for the best solutions (Barrett, 1985, p. 32).
In this case of Toronto Transit Commission v. A.T.U., the union grieved foreman, Mr. Vito Stina’s harassment as it provides an unhealthy work environment. Union sought his removal, however, employer did not accuse the foreman with any harassments. The arbitrator was noted that foreman has harassed griever with criticisms and public humiliation, that crossed the boundary. The harassments continued on a regular basis, which showed ignorance and disrespect. At the end of the day, foreman has ripped apart griever’s dignity. Griever had filed a hand to the employer explaining the harassments he has been experiencing, however, not much was done. When the arbitrator was informed about this issue, arbitrator had to conclude that the negative influence and the impact on the griever was too big to ignore. Therefore, it provided griever $25 000 for the hardships. Then, arbitrator stated new rules surrounding this problem in order to minimize the may arise: (1) the employer now has to ensure the griever had a harassment free workplace, (2) employer was to not work the the griever in the same area, and (3)
This paper will outline a complaint process and illustrate the civil litigation that could follow if the Equal Employment Opportunity Commission, through mediation and arbitration cannot resolve a charge. The complaint is based on a scenario of an employee, named John. John works for a private sector business and he wishes to lodge a complaint of discrimination against the company he works for. This paper will explain the steps that are taken, from the beginning with the (EEOC), Equal Employment Opportunity Commission. The paper will continue explaining the process by illustrating the civil litigation steps from the state level to the highest level of the United States Supreme Courts.
Despite the harmonious nature of Japanese people, there are still conflicts that cannot be resolved within the enterprise union and the firm. Most of these unresolved conflicts occur because many firms are conducting restructuring and retrenchment during this period of economic uncertainty. When these conflicts happen, they can approach the local government mediation body to help conciliate and make a decision. Most decisions made are generally accepted; however, should the conflicts still exist, they can opt for arbitration in the Labour Tribunal System, or legislation in court. For arbitration, the judges involved are tripartite in nature: 1 professional judge, 1 union representative and 1 employer representative. All 3 judges must have professional knowledge and experience in labour issues, and there are no more than 3 hearings, verdict based on majority. If the verdict is rejected by either party, they may proceed to legislation (Elbo 2004).
Collective bargaining is the process by which conditions of employment are negotiated between management, and the labor organization representing employees in the bargaining unit. However, “collective bargaining refers to a situation in which union members and officials meet with an intent to resolve any issues or conflicts, in an attempt to maintain relationships” (Holley, Jennings, & Wolters, 2012, p. 243). The collective bargaining process relies on four aspects: recognition of the meeting, meeting with appropriate parties, bargaining in good faith, and incorporating the reached agreement (Adam, 1997). Nevertheless, collective bargaining activities are governed by the National Labor Relations Act (NLRA). The NLRA requires bargaining