Digital Commons Network^™

An Essay Challenging The Racially Biased Selection Of Arbitrators For Employment Discrimination Suits, Michael Z. Green

Michael Z. Green

Since 1991, employers have increasingly decided to require that employees agree to arbitrate statutory employment discrimination claims as a condition of employment. This Essay seeks to expose some of the potential discriminatory components that may arise in the arbitrator selection process while highlighting the lack of legal remedy for those who believe that employers, in conjunction with neutral service provders, have stacked the pool in favor of having arbitrators who tend to be older, white and male. The Essay suggests the use of 42 U.S.C. Section 1981 as a potential remedy and challenge to the dearth of arbitrators of color …

Tackling Employment Discrimination With Adr: Does Mediation Offer A Shield For The Haves Or Real Opportunity For The Have-Nots, Michael Z. Green

Michael Z. Green

No abstract provided.

Unusual Unanimity And The Ongoing Debate On The Meaning Of Words: The Labor And Employment Decisions From The Supreme Court's 2013-14 Term, Michael Z. Green

Michael Z. Green

During its 2013-14 term, the Supreme Court focused on labor relations, wage and hour law, whistleblowing, and employee benefits in several cases. The Court also addressed constitutional issues concerning the First Amendment, the Recess Appointments Clause, and affirmative action. The Court did not decide any employment discrimination cases during the term. Even without employment discrimination cases, the 2013-2014 term provided ten key cases of importance to labor and employment lawyers. Three of these cases involved distinctly different matters of concern for organized labor. Two cases addressed employee whistleblowing matters. Three cases focused on employee benefits. Two cases addressed issues tangentially-related …

The Nlrb As An Uberagency For The Evolving Workplace, Michael Z. Green

Michael Z. Green

In addressing legal issues regarding the relationships between employers and employees, one must navigate a complex maze of rights and remedies that govern the workplace. This Essay details several recent and important workplace disputes addressed by the National Labor Relations Board (NLRB) pursuant to Section 7 of the National Labor Relations Act (NLRA). Section 7 protects a worker's right to pursue an activity for mutual aid or protection regarding wages, hours, and other terms and conditions of employment. The NLRB, a unique agency with its ultimate decisions determined by five members who primarily establish rules through adjudication rather than rule …

An Essay Challenging The Racially Biased Selection Of Arbitrators For Employment Discrimination Suits, Michael Z. Green

Michael Z. Green

Since 1991, employers have increasingly decided to require that employees agree to arbitrate statutory employment discrimination claims as a condition of employment. This Essay seeks to expose some of the potential discriminatory components that may arise in the arbitrator selection process while highlighting the lack of legal remedy for those who believe that employers, in conjunction with neutral service provders, have stacked the pool in favor of having arbitrators who tend to be older, white and male. The Essay suggests the use of 42 U.S.C. Section 1981 as a potential remedy and challenge to the dearth of arbitrators of color …

Ruminations About The Eeoc’S Policy Regarding Arbitration, Michael Z. Green

Michael Z. Green

This paper addresses the Equal Employment Opportunity Commission's current policy statement against the use of mandatory arbitration which is now more than ten years old. Quite a lot has occurred since the 1997 statement in which the EEOC criticized employers who attempted to require that employees agree as a condition of employment to arbitrate their statutory employment discrimination claims. Since 1997, the Supreme Court has issued opinions in both Circuit City v. Adams and EEOC v. Waffle House that should have clarified the EEOC's position. The author explores the reasons why the EEOC has still not taken a clear position …

Reading Ricci And Pyett To Provide Racial Justice Through Union Arbitration, Michael Z. Green

Michael Z. Green

With the current political climate regarding racial issues, any positive gains in resolving race discrimination claims in the workplace cannot come from new legislation through the Obama administration. Instead, those gains will have to come from within the workplace. Unions and their employee members must work together and with employers to resolve those disputes. Specifically, in this Article, two high-profile employment discrimination cases decided by the Supreme Court during President Obama's first year in office--Ricci v. DeStefano and Penn Plaza LLC v. Pyett--help identify a framework whereby employees with racial discrimination claims against their employers may work with …

Opposing Excessive Use Of Employer Bargaining Power In Mandatory Arbitration Agreements Through Collective Employee Actions, Michael Z. Green

Michael Z. Green

When you review the modern employment relationship and the role of contract, you have to start with the default position of employment-at-will, which allows an employer, in general, to terminate an employee for good reason, bad reason, or no reason at all. A number of exceptions to the employment-at-will rule exist, including tort and statutory employment discrimination claims that allow employees to seek legal remedies and punitive damage awards from juries. As these exceptions have developed outside of contract law, employers have responded by a major contractual effort to shift these disputes away from the courts and into arbitration. The …

Retaliatory Employment Arbitration, Michael Z. Green

Michael Z. Green

In 2014, we reach a key milestone with the fiftieth anniversary of the passage of Title VII of the Civil Rights Act of 1964 ("Title VII"). This landmark federal legislation, which prohibits discrimination in the workplace, also created the Equal Employment Opportunity Commission ("EEOC"). This Article focuses on the use of arbitration, a form of alternative dispute resolution ("ADR"), to decide federal employment discrimination claims brought under that and related statutes. Specifically, this Article addresses the use of so-called "mandatory," "forced," "employer-mandated," or "pre-dispute" or "compelled" agreements to arbitrate that have garnered much attention and criticism over the past twenty …

Ethical Incentives For Employers In Adopting Legal Service Plans To Handle Employment Disputes, Michael Z. Green

Michael Z. Green

Given the difficulties for employees in finding a lawyer to handle an employment dispute and with the growth of ADR, this article asserts that employers should adopt legal service plans as an employee benefit. It might seem counterintuitive for employers to provide their employees with a legal service benefit that may be used against them in employment disputes. However, comprehensive dispute resolution systems employ fair mechanisms that allow employees to resolve their disputes as soon as possible. Having sound legal counsel can become a major component of an employer's dispute resolution system because it offers a distinct human resource advantage …

Preempting Justice Through Binding Arbitration Of Future Disputes: Mere Adhesion Contracts Or A Trap For The Unwary Consumer, Michael Z. Green

Michael Z. Green

When individual consumers with little or no bargaining power have not consented to particular contractual terms, the use of the courts and judicial interpretations may be the only way to promote justice and allow consumers to protect themselves. Unfortunately, the trend, as established in recent United States Supreme Court decisions, is to apply the deferential standards of enforcement from commercial transactions to situations involving adhesion contracts between an individual consumer and a business entity where equal bargaining power is clearly lacking.

Perhaps the most pervasive example of this trend has been the Supreme Court's zealous enforcement of arbitration clauses under …

Debunking The Myth Of Employer Advantage From Using Mandatory Arbitration For Discrimination Claims, Michael Z. Green

Michael Z. Green

As a matter of general practice, the use of mandatory arbitration as a dispute resolution mechanism for employment discrimination claims has failed to give employers an overall advantage. Instead, this Article will show that the use of mandatory arbitration to resolve statutory employment discrimination disputes presents a significant number of disadvantages for employers, especially large corporations that operate as repeat players in employment litigation.

First, despite purported cost benefits from using alternative dispute resolution ("ADR"), arbitration can be just as expensive as litigation if not more costly. Second, the reluctance of the Supreme Court to clarify the problems with mandatory …

Proposing A New Paradigm For Eeoc Enforcement After 35 Years: Outsourcing Charge Processing By Mandatory Mediation, Michael Z. Green

Michael Z. Green

After more than thirty-five years of existence and the quickly approaching thirty year anniversary of the amendment that was intended to transform the EEOC from being a "toothless tiger" of an enforcement agency, the EEOC must now adopt new paradigms for enforcement. Those new paradigms must concentrate on limiting or removing any ongoing focus on charge processing and switching the focus to long-term enforcement initiatives. To accomplish that objective, this Article proposes that the EEOC outsource a significant portion of its charge processing responsibilities to private mediation, an informal process by which a neutral party works with the interested parties …

Tackling Employment Discrimination With Adr: Does Mediation Offer A Shield For The Haves Or Real Opportunity For The Have-Nots, Michael Z. Green

Michael Z. Green

No abstract provided.

Panel 3: Individuals, The Collective, And Democracy: Race, Class, Gender, Disability, And Individual Employee Rights, Addie C. Rolnick, Michael Z. Green, Francine J. Lipman, Nicole B. Porter, Gowri Ramachandran, Terry Smith

Michael Z. Green

Moderator: Addie Rolnick

Michael Z. Green: Black Worker Voice in Times of Joblessness and Anti-Racism Backlash

Francine J. Lipman: What's Tax Got to Do With It?

Nicole B. Porter: Women, Unions, and Negotiation

Gowri Ramachandran: Pay Transparency

Terry Smith: Law's Austerity: Capital, Labor, and Race in the Globalized Economy

Against Employer Dumpster-Diving For Email, Michael Z. Green

Michael Z. Green

Recent attorney client-privilege cases ojfer a modern understanding of reasonable expectations of employee privacy in the digital age. Today employees are sending an increasing number of electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality. Historically, courts summarily dispensed with these matters by finding that an employer policy establishing employer ownership of any communications made through employer-provided devices eliminated any employee expectation of privacy in the communications and waived any viable privacy challenges to employer review of those communications. Nevertheless, within the last couple of years, several cases involving …

How The Nlrb's Light Still Shines On Anti-Discrimination Law Fifty Years After Title Vii, Michael Z. Green

Michael Z. Green

On July 2, 1964, President Lyndon B. Johnson signed into law the Civil Rights Act of 1964. Provisions in Title VII of that statute ("Title VII") created a ban on employment discrimination. Title VII specifically establishes that "it shall be unlawful for an employer to fail or refuse to hire, discharge, limit, segregate, classify, or otherwise discriminate against any individual, with respect to wages, privileges, and other terms of employment because of that individual's race, color, religion, sex, or national origin." As the passage of Title VII approaches its fiftieth anniversary, this Article explores what may be thought of as …

Understanding The Ex Parte Communications Ban In Employment Disputes, Michael Z. Green

Michael Z. Green

One of the biggest issues with ex parte communications in the employment setting involves the question of whether a plaintiff's attorney may have ex parte communications with employees of a defendant corporate entity without violating ethical rules. See generally Ellen J. Messing & James S. Weliky, Contacting Employees of an Adverse Corporate Party: A Plaintiff's Attorney's View," 19 Lab. Law. 353 (2004). However, this article focuses on the situation in which the employee or employer, as clients of an attorney in a legal dispute, attempt to contact adverse represented parties or persons.

Addressing Race Discrimination Under Title Vii After Forty Years: The Promise Of Adr As Interest-Convergence, Michael Z. Green

Michael Z. Green

The thesis of this Essay is that litigation and legal enforcement strategies, including any new legislation that would force employers to address discrimination in the workplace, should no longer be the focus of civil rights activists. Instead, those seeking to root out race discrimination in the workplace must focus on including non-legal options such as alternative dispute resolution (ADR) activities. Any new strategies must address the concerns of workplace discrimination and the use of ADR in a way that merges those issues with the interests and incentives of employers. Derrick Bell has referred to the merger that forms when the …

Measures To Encourage And Reward Post-Dispute Agreements To Arbitrate Employment Discrimination Claims, Michael Z. Green

Michael Z. Green

No abstract provided.

A 2001 Employment Law Odyssey: The Invasion Of Privacy Tort Takes Flight In The Florida Workplace, Michael Z. Green

Michael Z. Green

Computer use has exploded over the last twenty years. Even more rapid growth of technology throughout the 1990s has culminated with the dynamic and exponentially increasing use of the Internet. This technology spurt has led the way to many more business opportunities. With those increasing opportunities more problems have arisen, especially with protecting privacy on a domestic and an international scale after the European Union Directive. The European Union Directive created a profound impact on multinational employers, especially those in the U.S., by requiring guarantees that all private information gathered by companies doing business in countries that are members of …

Finding Lawyers For Employees In Discrimination Disputes As A Critical Prescription For Unions To Embrace Racial Justice, Michael Z. Green

Michael Z. Green

No abstract provided.

No Strict Evidence Rules In Labor And Employment Arbitration, Michael Z. Green

Michael Z. Green

Since arbitrators are not bound by the strict rules of evidence applicable in court, there originally developed a practice of admitting hearsay 'for what it is worth.' As various texts and many arbitrators have stated, 'Rarely do the parties know what it is worth, at least not at the hearing.' I would add, nor in the preparation of their briefs. As far back as 1967 a prominent group of arbitrators concluded: 'Unless corroborated by truth-tending circumstances in the environment in which it is uttered, it (hearsay) is unreliable evidence and should be received with mounting skepticism of its probative value …

Unpaid Furloughs And Four-Day Work Weeks: Employer Sympathy Or A Call For Collective Employee Action, Michael Z. Green

Michael Z. Green

In these tough economic times, employers have responded by pursuing four-day work weeks and other mechanisms that change the components of the standard five-day work week. Although four-day work weeks provide some savings in the form of reduced operating and energy costs and have received recent notice for also being family-friendly and environmentally friendly, current dismal economic prospects have inspired employers to pursue other work week changes to achieve further savings. Furloughs, also referred to as unpaid days off, represent a form of a reduced work week as employees do not work during their furloughed time and receive no income …

Ethical Incentives For Employers In Adopting Legal Service Plans To Handle Employment Disputes, Michael Z. Green

Michael Z. Green

No abstract provided.

Proposing A New Paradigm For Eeoc Enforcement After 35 Years: Outsourcing Charge Processing By Mandatory Mediation, Michael Z. Green

Michael Z. Green

No abstract provided.

Understanding The Ex Parte Communications Ban In Employment Disputes, Michael Z. Green

Michael Z. Green

No abstract provided.