Arbitration of Employment Disputes - Drafting Enforceable Pre-Dispute Agreements
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Authors
Moore, Scott S.
Issue Date
1999
Type
Journal Article
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Abstract
INTRODUCTION|Despite the frequent discussion among labor and employment attorneys about the use of pre-dispute arbitration agreements for employment related disputes, the actual use of these agreements has not been prolific. The plaintiffs attorney fears that arbitration is a poor forum for large damage awards; that without a jury, their pleas for common sense, decency, justice and a statement to the world about how big, bad, hollow companies should treat employees will not be heard. Likewise, the defense's attorney has his/her own fears. He/she worries that: arbitrators will apply the "just cause" standard that arbitrators have become accustomed to in the union setting; arbitrators will "split the baby;" that a defense verdict is more difficult; appeal rights are slim; and legal analysis is not always thorough or accurate. |Slowly, but surely, however, a few employers outside of the financial industry are looking to alternative dispute resolution ("ADR"), including arbitration, as a way to resolve workplace disagreements and to prevent runaway jury awards. In addition, courts have been largely willing to allow the arbitration of employment disputes to be processed in arbitration, citing Gilmer v. Interstate/Johnson Lane Corp. for precedent, and with an unstated desire to get the burden of employment claims off the court docket. |As employers investigate, analyze, and implement ADR programs, including arbitration, the Equal Employment Opportunity Commission ("EEOC") has increasingly expressed its dissatisfaction with these agreements as a violation of basic rights to file discrimination charges and to have a case heard before a jury. The plaintiffs bar...
Description
Citation
32 Creighton L. Rev. 1521 (1998-1999)
Publisher
Creighton University School of Law