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.
Author: Michael Jacobson, JD, Legal Editor
Arbitration is a 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.
While the Supreme Court's ruling on the Defense of Marriage Act has drawn the most attention, other key opinions from the 2012-2013 term also affect HR. In a new podcast, our editorial team examines a pair of wins for employers in cases involving Title VII of the Civil Rights Act--Texas Southwestern Medical Center v. Nassar and Vance v. Ball State - plus much more.
A Florida appeals court held that specific language in an arbitration agreement meant that the employer could arbitrate a workers' compensation retaliation claim, while preserving an exception the employer created to avoid arbitrating workers' compensation benefits claims.
The Arbitration section of the Investigations and Litigation chapter of the Employment Law Manual has been enhanced to include a discussion of several court decisions addressing conflicts between mandatory arbitration programs and either federal or state laws. Employers that use arbitration agreements or mandatory arbitration programs should review this material to ensure their arbitration agreements remain enforceable and that they cover the appropriate causes of action.
A divided Supreme Court ruled that class action waivers in arbitration agreements are enforceable, even if the cost of prevailing in individual arbitration claims is high. Employers should consider using arbitration agreements as a cost-saving measure and should consider including class action waivers in their arbitration agreements as a means to prevent employees from banding together to pursue their claims.
The Supreme Court held that arbitrators - not courts - may have the last word on the question of class arbitration, opening the door to more class arbitration in the employment context. Employers should review their arbitration agreements to determine if they are specific and clear about their intentions, including, but not limited to the question of class arbitration.
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.
HR guidance on the benefits of creating arbitration programs and how arbitration programs can help employers reduce costs and exposures associated with litigation.