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
On this podcast, longtime Proskauer employment attorney Anthony Oncidi and XpertHR Legal Editor David Weisenfeld discuss key developments from the Supreme Court's term, including its latest arbitration rulings.
The Supreme Court has ruled 5-4 that employees may not compel their employer to face classwide arbitration when an agreement is ambiguous as to whether the parties agreed to submit to class arbitration.
A broad New Jersey law now prohibits mandatory arbitration of all employment discrimination, harassment and retaliation claims, and also significantly restricts employers from using nondisclosure agreements as part of a settlement.
Google has announced it will soon end its practice of requiring employees to resolve employment disputes through arbitration as a condition of employment.
The Supreme Court has handed a rare victory to workers in a case involving a mandatory arbitration provision, ruling unanimously that a court's authority to compel arbitration under the Federal Arbitration Act does not extend to all private employment contracts.
The Supreme Court has ruled unanimously that when a contract delegates an arbitrability question to an arbitrator, a court may not override the contract even if the court thinks the arbitrability claim is groundless.
Google recently announced significant changes to its sexual harassment policies in response to a one-day walkout by employees around the world protesting the company made payments at termination to employees accused of sexual harasserment.
A new Supreme Court case asks whether workers may bring employment claims in a class arbitration if an arbitration agreement does not explicitly bar class actions. In prior cases, the justices have generally interpreted the Federal Arbitration Act in favor of employers.
HR guidance on the benefits of creating arbitration programs and how arbitration programs can help employers reduce costs and exposures associated with litigation.