Overview: Alternative dispute resolution (ADR) is a term for both proactive (dispute identification) measures and reactive (dispute resolution) procedures that employers use to identify risk and reduce costs. The earlier a problem is identified in the life of a dispute, the better chance the employer has to address it in a timely, cost-efficient way. HR often has a key role in implementing ADR protocols, receiving complaints from employees and handling grievances.
If disputes progress beyond intra-office matters, ADR also encompasses litigation-prevention tools like arbitration and mediation. Arbitration is a voluntary process between the employer and employees, meaning that both parties have to agree to participate. It is more common in a unionized workforce setting, but is becoming increasingly popular for all employers because it involves a final, binding decision. Mediation, on the other hand, can be voluntary or involuntary, depending on where a claim begins. Some state court systems do not require parties to mediate their claims, while others will direct parties to mediation as a means to determine if the parties can resolve their dispute amicably before proceeding with litigation. The mediator's final decision is hardly ever binding which makes mediation a useful tool for parties to analyze the strength of their positions.
Regardless of the type of ADR, HR plays an active role in promoting the employer's interests, either by acting as an arbiter between disputing parties in the proactive phase, or by supporting the employer's position in the reactive phase.
Trends: Due to the rise in and ever-increasing costs of litigation, employers are increasingly turning to ADR as a solution. Labor disputes, wage and hour, and discrimination claims in particular are increasingly common and employers need to take steps to stem the tide of lawsuits. ADR is a valuable and effective means to accomplish that goal, particularly if utilized in both proactive and reactive ways.
Author: Melissa Boyce, JD, Legal Editor
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.
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 has enhanced its Labor Relations content to include a Supervisor Briefing on Handling and Investigating a Union Grievance which examines the law and best practices for handling and investigating a grievance filed by a union employee.
This Supervisor Briefing examines the law and best practices for handling and investigating a grievance filed by union employee.
XpertHR has enhanced its Labor Relations content to include a Disciplining a Union Employee Supervisor Briefing, which examines the law and best practices for disciplining a union employee.
This Supervisor Briefing examines the law and best practices for disciplining a union employee.
In Litton Financial Printing Division v. NLRB, 501 U.S. 190 (1991), the Supreme Court addressed whether a dispute over the layoff of employees which occurred well after the expiration of the collective bargaining agreement must be arbitrated nonetheless under the arbitration provision of the then-expired collective bargaining agreement.
In yet another reversal of longstanding precedent, the National Labor Relations Board (Board) held in American Baptist Homes of the West d/b/a Piedmont Gardens, 2012 NLRB LEXIS 846; 359 NLRB No. 46 (December 15, 2012) that employers can no longer simply assert that a witness statement taken in the course of an internal investigation is confidential and refuse to provide the statement to the union. Rather, an employer must apply a balancing test to establish a real confidentiality interest.
XpertHR has expanded its already robust coverage of state private and public sector labor relations requirements by now providing subscribers information necessary to avoid liability in their everyday interactions with unions in the workplace. In the new Employer Liability sections, subscribers will learn state specific laws and regulations that address potential liability exposure and resulting penalties.
HR guidance on alternative dispute resolution methods, its usefulness in the pre-dispute phase and its usefulness as a means to resolve pending disputes.