Overview: Arbitration is a voluntary dispute resolution process that is available to employers with both unionized and non-unionized employees. While many collective bargaining agreements (CBAs) include arbitration clauses, private employers with non-unionized workforces may also create arbitration programs to handle employment claims. The voluntary nature of arbitration requires, however, that both the employer and the employees agree to arbitrate their claims. If the parties are in agreement, either before or after the incident occurs which requires resolution, arbitration is an extremely useful tool for employers seeking to reduce their litigation costs and their exposure to litigation.
The Federal Arbitration Act (FAA) legitimizes interstate arbitration agreements by elevating them to the same legal standing as employment contracts. Thus, the FAA provides employers with substantial legal authority from which to build arbitration agreements and, depending on whether the agreements are enforceable, arbitration can be used to handle many types of costly employment disputes. Importantly, employers must be familiar with both the FAA and state law pertaining to arbitration procedures, if any, in order to ensure that arbitration programs and awards are legitimate and binding on the parties.
Trends: While private employers with a non-unionized workforce have other dispute resolution methods available to them like mediation, employers are increasingly moving toward arbitration because it typically involves a binding decision by the arbitrator which the parties must accept. This fact, combined with a typically narrow arbitrator selection process, may convey an advantage to the employer. In most cases, arbitration can deliver a fair and binding result, while substantially reducing costs associated with litigation, including investigative fees and attorney's fees.
Employers with a unionized workforce typically opt to negotiate for labor arbitration clauses to be contained in CBAs as a cost-reduction and efficiency measure. Labor arbitration includes a formalized process of selecting an arbitrator, presenting information to the arbitrator, and of course, the receipt of a binding arbitration award from which appeals are only permissible if the award was fraudulent, the arbitrator exceeded his or her authority or the arbitrator committed misconduct.
Michael Jacobson, J.D., Legal Editor
XpertHR's High-Tech Resource Center for HR: Terminations helps high-tech employers handle their most challenging employment issues by bringing relevant resources together in one place for easy access.
XpertHR provides up-to-date guidance for employers regarding the implications of two recent federal district court rulings, concerning the enforceability of arbitration agreements. Employers can use this information and guidance to shore up their arbitration agreements and arbitration programs to maintain enforceability.
Arbitration is a voluntary dispute resolution process that is preferred by many employers because it is quicker and cheaper than litigation. This section reviews the enforceability of arbitration agreements, arbitration programs, the arbitration process, labor arbitration, rights arbitration and interest arbitration.
Given the consistent increase in the number of retaliation claims brought by employees, employers may be left wondering what they can do to reduce or prevent retaliation claims. There are many tools at the employer's disposal to properly handle complaints of unethical, wasteful or illegal practices in the workplace and many steps employers can take to identify problematic employees before they proceed with retaliation claims.
In Owen v. Bristol Care, the 8th Circuit Court of Appeals held that arbitration agreements that include waivers of employees' rights to bring a collective action under the Fair Labor Standards Act (FLSA) are enforceable despite a National Labor Relations Board (NLRB) ruling to the contrary.
The Supreme Court has said it will hear the arbitration case of Oxford Health Plans v. Sutter, No. 12-135. At issue is whether more than 16,000 physicians can collectively arbitrate a payment dispute with Oxford Health even though their arbitration agreement did not mention class actions. The case is relevant to HR because a ruling against the physicians likely would make it more difficult for individual employees to band together to bring class action claims against employers in arbitration.
HR guidance on the benefits of creating arbitration programs and how arbitration programs can help employers reduce costs and exposures associated with litigation.
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