Mandatory Interrogration Clauses

Facts: Defendant (Kmart) allegedly failed to provide to plaintiff (Lopez) the written wage statements. The availability of the wage statements is required under California labor code. Under the agreement, employment-related issues between the employee and company shall be resolved informally or by binding arbitration. This replaces the right of either party to go to court or have a jury decide the outcome of the claims. Lopez alleges that the agreement was never valid due to the fact that he was a minor when he acknowledged the agreement and is now entitled to revoke his consent.

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.

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).

Maintaining strong employee relations is vital to the success of any business. Many of the Supreme Court cases in the textbook discuss collective bargaining and union participation. These cases were intriguing because they reiterate employees’ rights to express their opinions and join organizations designed to better their lives.

As workers’ complaints trigger the grievance process, it typically take a long time to resolve, which means that an employer can continue to exert power by violating an agreement for an extended period of time. So, an employer can fire, transfer, or demote a worker and thereby affect the worker’s life significantly for years. And assuming the grievance goes against the employer, the only penalty is to make the employee economically whole again. In this way employers continue to wield significant power even when they are subject to a collective agreement. This suggests that the grievance arbitration process is not necessarily a neutral thing. In fact the delay inherent in the process advantages employers, and legally precluding the workers from working when the employer violates the contract, disadvantages workers. In this way, rules are not neutral, but are themselves tools of power for the employers. Unions exert their share of power also. Unions are organizations formed for the purpose of representing their members’ interests and resolving conflicts with employers. Unions have a critical role to play because some degree of conflict is inevitable between workers and management. This divergence is because the main goal of a union such as increase wages, offer better benefits, and reduce work-time conflicts with the employer’s agenda to reduce

In 2001, The United States Supreme Court has decided that the Federal Arbitration Act applies broadly to employment contracts, since that time usage of forced arbitration agreements by employers significantly increased. There are several reasons why the arbitration agreement on employment contract is legally enforceable. First of all, when the agreement reflected on the promise, which has valid offer, acceptance, and consideration, between employer and employee, it can be considered as a legally enforceable contract. Thus, the contract shouldn’t be involved in lack of capacity, voluntary consent, and illegality. In fact, customer or employee give up their rights to potential legal action in exchange for a job, product, or a service. Consequently,

83/1992 s.4 conciliation, mediation and arbitration with the minimum of legal form and technicality; (i) to provide for the observance and enforcement of dispute

Here, the labor and management members are the partisans or advocates for their respective sides, and the neutral chairperson then becomes a single arbitrator. The unique role that the panel chair plays in the arbitration process is that it’s the chairs duty to keep other arbitrators well informed of the aspects involved within the case in order to make sound decisions. When the tripartite board doesn’t decide unanimously, they turn to the collective bargaining agreement, which often stipulate that a majority award of the board is final and binding. The advantages of this board are that it provides the neutral member with valuable advice and assistance from the partisan members, which allows the parties to give a more realistic and informed picture of the issues at hand. However, the disadvantage is that it takes additional time and more expenses are incurred with a board.

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).

By signing these law binding clauses we relinquish our rights as Americans to take an organization or business to civil court. Instead, these arbitration clauses state that we are required to take the case up privately with the company or organization. After watching and listening what happened to Jamie Jones I was very worried about the unlawful practices that can hide crimes within among our citizens. After being raped, beaten, and mistreated Miss. Jones was denied her day in court because of a mandatory arbitration clause that she unknowingly

California’s West’s Ann.Cal.C.C.P. § 1281 states that; “A written agreement to submit to arbitration current claims or claims arising after the agreement is valid, enforceable, and irrevocable, save upon such grounds as exist for the revocation of any contract.” One way to revoke a contract is to show that it is unconscionable. California 's West 's Ann.Cal.Civ.Code § 1670.5 gives the California court 's the power to; a) refuse to enforce all or part off the contract or terms that it finds unconscionable, as a matter of law, finds that a contracts or terms are unconscionable and b) afford parties the opportunities to present evidence to help determine the conscionability of the contract in court. To prove unconscionability in the arbitration clause, both disparate elements have to be present during the implementation of the clause; 1) procedural unconscionability and 2) substantive unconscionability (American Software Inc. v. Ali, 46 Cal.App.4th 1386 (1996)). Procedural unconscionability focuses on two factors; oppression and surprise (Kinney v. United HealthCare Services, Inc., 70 Cal.App.4th 1322 (1999)). Substantive unconscionability focuses on the terms of the arbitration clause, to see whether they are sufficiently unfair or one-sided enough to “shock the conscious" (See American Software).

In response to your request, I analyzed reviewed Ms. Baker arbitration clause to see whether it is considered unconscionable.

The Company and Union have jointly agreed to an alternative arbitrator, John Barnard, a seasoned arbitrator out of the Dallas area. Feedback received from others who have presented to Barnard indicate that he is a fair arbitrator with interest arbitration experience. The parties have notified him that he has been chosen and has requested potential dates for the interest arbitration.

In all too many instances, the promise of fair and inexpensive arbitration is not held for American consumers and employees, and companies use mandatory arbitration clauses as a creature to deflect accountability. Employers should take care to accept their counsel frequently review the enforceability of their employment agreements, and employees should take the time to learn and see the paperwork they sign when getting on to a new employer. Courts Offer More Access to Justice than does Mandatory Arbitration When companies can use arbitration to elude such lawsuits by suppressing claims they effectively render our laws toothless. I favor passage of the Arbitration Fairness Act, because I think it is the best way of protecting consumers and employees