Law Commons^™

What The Awards Tell Us About Labor Arbitration Of Employment Discrimination Claims, Ariana R. Levinson

Ariana R. Levinson

This Article contributes to the debate over mandatory arbitration of employment-discrimination claims in the unionized sector. In light of the proposed prohibition on union waivers in the Arbitration Fairness Act, this debate has significant practical implications. Fundamentally, the Article is about access to justice. It examines 160 labor arbitration opinions and awards in employment-discrimination cases. The author concludes that labor arbitration is a forum in which employment-discrimination claims can be-and, in some cases, are-successfully resolved. Based upon close examination of the opinions and awards, the Article recommends legislative improvements in certain cases targeting statutes of limitations, compulsory process, remedies, class …

Mandatory Predispute Consumer Arbitration, Structural Bias, And Incentivizing Procedural Safeguards, Nancy A. Welsh

Nancy Welsh

Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Mandatory predispute arbitration has generated the most controversy because it appears beset with structural bias. The recent cases of AT&T Mobility LLC v. Concepcion and Compucredit Corp. v. Greenwood have raised additional concerns as the Supreme Court has announced that corporations can force consumers to arbitrate their private and statutory claims and give up their rights to pursue class relief. This Article begins by arguing that the Supreme Court’s enthusiastic embrace of mandatory predispute arbitration should be understood primarily …

Can Nfl Players Obtain Judicial Review Of Arbitration Decisions On The Merits When A Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, Michael Z. Green, Kyle T. Carney

Michael Z. Green

Several recent court cases, brought on behalf of National Football League (NFL) players by their union, the NFL Players Association (NFLPA), have increased media and public attention to the challenges of labor arbitrator decisions in federal courts. The Supreme Court has established a body of federal common law that places a high premium on deferring to labor arbitrator decisions and counseling against judges deciding the merits of disputes covered by a collective bargaining agreement (CBA). A recent trend suggests federal judges have ignored this body of law and analyzed the merits of labor arbitration decisions in the NFL setting.

NFL …

Individual Employment Rights Arbitration In The United States: Actors And Outcomes, Alexander Colvin, Mark Gough

Alexander Colvin

The authors examine disposition statistics from employment arbitration cases administered over an 11-year period by the American Arbitration Association (AAA) to investigate the process of dispute resolution in this new institution of employment relations. They investigate the predictors of settlement before the arbitration hearing and then estimate models for the likelihood of employee wins and damage amounts for the 2,802 cases that resulted in an award. Their findings show that larger-scale employers who are involved in more arbitration cases tend to have higher win rates and have lower damage awards made against them. This study also provides evidence of a …

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 …

The Arbitration Of Employment Disputes In The Securities Industry: A Study Of Finra Awards, 1986-2008, David B. Lipsky, Ronald L. Seeber, J. Ryan Lamare

David B Lipsky

[Excerpt] This article reports on the results of our recent study of 3,200 arbitration awards issued in employment cases administered under the auspices of FINRA, its predecessor the National Association of Securities Dealers (NASD), and the New York Stock Exchange (NYSE). It responds to Colvin’s call for more empirical research while providing some data on the debate over the fairness of mandatory employment arbitration agreements in the securities industry. After disclosing the limitations of our study and presenting our findings with regard to the FINRA cases, we consider how these findings bear on the debate about mandatory arbitration, specifically whether …

The Impact Of Case And Arbitrator Characteristics On Employment Arbitration Outcomes, Alexander Colvin, Kelly Pike

Alexander Colvin

[Excerpt] A major development in systems for the enforcement of individual employment rights is the use of alternative dispute resolution (ADR) procedures to resolve claims by employees. At their best, ADR procedures may hold the potential for greater accessibility by employees to enforcement of substantive employment rights, while avoiding burdens of excessive costs for the public and employers in processing claims. On the other hand, ADR procedures, particularly mandatory employment arbitration procedures, have also been criticized for producing the privatization of justice and denial of effective enforcement of employee rights. In this paper, we present the results of a new …

An Empirical Study Of Employment Arbitration: Case Outcomes And Processes, Alexander Colvin

Alexander Colvin

Using data from reports filed by the American Arbitration Association (AAA) pursuant to California Code requirements, this article examines outcomes of employment arbitration. The study analyzes 3,945 arbitration cases, of which 1,213 were decided by an award after a hearing, filed and reaching disposition between January 1, 2003 and December 31, 2007. This includes all the employment arbitration cases administered nationally by the AAA during this time period that derived from employer-promulgated arbitration procedures. Key findings include: (1) the employee win rate amongst the cases was 21.4%, which is lower than employee win rates reported in employment litigation trials; (2) …

Rethinking Bargaining Unit Determination: Labor Law And The Structure Of Collective Representation In A Changing Workplace, Alexander Colvin

Alexander Colvin

[Excerpt] Arguably the leading issue for current labor law research is whether the existing system of law based on the Wagner Act model can continue to be relevant and appropriate for the contemporary workplace. Changes in the environment of work during the over half-century since this model was developed have brought pressures for re-evaluation and adaptation of key elements of its structure. Criticism of this system has focused on a number of areas, including: the reliance on the formal grievance procedure and arbitration; the separation of the realms of collective bargaining and business decision making; the limitations on employee participation …

The Alternative Forms Of Dispute Settlement And The Essential Difference Between These And Arbitration, Michael Diathesopoulos

Michael Diathesopoulos

The paper examines the characteristics of some common alternative forms of dispute settlement and their key differences from arbitration regarding their nature and scope. Its purpose is to explore each mechanism's suitability for specific types of disputes.

Employer's Exclusive Control Over Selection Of Arbitrators Held Invalid, Adam Epstein

Adam Epstein

Discussion of the 2003 Sixth Circuit Court of Appeals case McMullen v. Meijer, Inc. While alternative forms of dispute resolution such as arbitration and mediation are now commonplace and are effectively utilized to avoid litigation and resolve disputes between employers and employees, the procedure in the arbitration process must be fair. Upon the hire, employers often provide their employees with an employment handbook that specifically discusses procedures involving termination. Often the employee handbook, if one exists, is viewed as a contract and is often a first step in determining the proper method of dispute resolution and procedure. In this case, …

Alternative Dispute Resolution In Sport Management And The Sport Management Curriculum, Adam Epstein

Adam Epstein

The article covers the basics of alternative dispute resolution (ADR). It then demonstrates how the instructor can utilize and incorporate ADR to effectively teach in sport management classes and sports law at the intercollegiate level.

Time At A Premium: The Arbitration Of Overtime And Premium Pay Disputes, Roger Abrams, Dennis Nolan

Roger I. Abrams

This article continues the joint work of Professors Abrams and Nolan concerning the major issues addressed in labor arbitration. Unionized workplaces often include in their collective bargaining agreements provisions for the payment of premium pay to employees who work in certain situations, such as overtime hours beyond the normal workday or work week or hours worked when employees are called-in to work during non-working hours. The resolution of these disputes requires careful attention to the terms used by parties in their agreements within the context of the basic purposes of such provisions and an understanding of how they generally operate …