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Book part
Publication date: 19 July 2016

Mark D. Gough

This chapter investigates attributes of an unexplored actor in the contemporary industrial relations system – plaintiff-side employment attorneys – and the premise that…

Abstract

Purpose

This chapter investigates attributes of an unexplored actor in the contemporary industrial relations system – plaintiff-side employment attorneys – and the premise that pre-dispute mandatory employment arbitration expands employee access to justice.

Methodology/approach

It presents data from a novel survey of 1,256 employment plaintiff attorneys and the universe of employment disputes administered by the five largest arbitration providers in the United States.

Findings

I report multiple measures indicating employment lawyers hold negative views of arbitration and that arbitration acts as a barrier to employee access to justice: A majority of attorneys say employment arbitration clauses have a positive impact on their willingness to reject a case for representation and a negative impact on their willingness to accept a client under a contingency-fee arrangement, and report negative perceptions of the fairness of outcomes and the adequacy of due process protections in arbitration relative to litigation. Furthermore, attorneys report accepting potential clients covered by arbitration agreements at half the rate of potential clients able to sue in court. Finally, arbitration and litigation filing statistics reveal no evidence that low-income or low-value claimants or claims are accessing the arbitration forum.

Originality/value

Novel data compiled here illuminate the institutional characteristics of plaintiff-side employment lawyers and the arbitration forum. They question the assertion that arbitration is an accessible dispute resolution forum for employment disputes relative to civil litigation.

Details

Managing and Resolving Workplace Conflict
Type: Book
ISBN: 978-1-78635-060-2

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Article
Publication date: 1 April 1995

Lisa B. Bingham

This paper uses 1992 nonunion employment arbitration awards to examine how parties currently use arbitration outside collective bargaining. It presents descriptive data on…

Abstract

This paper uses 1992 nonunion employment arbitration awards to examine how parties currently use arbitration outside collective bargaining. It presents descriptive data on the costs of arbitration. It compares employer and employee claims, and finds that employees win higher damage awards. Employees recover a higher proportion of the damages they claim or have a better outcome than employers, notwith‐standing the theory that an arbitrator will rule in favor of employers because they have more resources to pay the arbitrator. While both employers and employees have lower outcomes when the arbitrator is paid a fee, this appears to be because the fee‐paying cases are higher stakes claims, and higher stakes claims result in proportionally lower damage awards. The findings tend to contradict the theory that employment arbitrators will be biased in favor of employers in a nonunion setting.

Details

International Journal of Conflict Management, vol. 6 no. 4
Type: Research Article
ISSN: 1044-4068

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Book part
Publication date: 19 November 2019

Michael D. Maffie

With the rise of employer-promulgated mandatory employment arbitration, scholars have become concerned that these policies may reduce the economic viability of lower value…

Abstract

With the rise of employer-promulgated mandatory employment arbitration, scholars have become concerned that these policies may reduce the economic viability of lower value employment claims. Of particular worry are claims made under the Fair Labor Standards Act since the FLSA does not include punitive damages. This study empirically tests the relationship between 368 Fortune 1000 companies’ employment arbitration policies and their wage and hour violations discovered during the Department of Labor inspections. Surprisingly, firms that used arbitration were found to have fewer violations and lower back wages for those violation compared to firms that did not use arbitration. This suggests that viewing arbitration merely as a cost-reduction tool may cast the practice too narrowly and instead it may be part of a larger conflict management system that seeks to address conflict at the earliest possible stage.

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Article
Publication date: 1 April 2004

Georgios I. Zekos

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and…

Abstract

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way of using the law in specific circumstances, and shows the variations therein. Sums up that arbitration is much the better way to gok as it avoids delays and expenses, plus the vexation/frustration of normal litigation. Concludes that the US and Greek constitutions and common law tradition in England appear to allow involved parties to choose their own judge, who can thus be an arbitrator. Discusses e‐commerce and speculates on this for the future.

Details

Managerial Law, vol. 46 no. 2/3
Type: Research Article
ISSN: 0309-0558

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Article
Publication date: 10 October 2016

Richard A. Posthuma, Gabriela L. Flores, James B. Dworkin and Samuel Pavel

Using an institutional theory perspective (micro and macro), the authors examined employment lawsuits across case type and alternative dispute resolution methods…

Abstract

Purpose

Using an institutional theory perspective (micro and macro), the authors examined employment lawsuits across case type and alternative dispute resolution methods (negotiated settlements versus trials and arbitrations).

Design/methodology/approach

The authors examined actual data from US federal court lawsuits (N = 98,020). The data included the type of lawsuit, the dispute resolution method used and the outcome of the lawsuit in terms of the dollar amounts awarded.

Findings

The results show that employers were more likely to win in high social context cases (civil rights) than in other cases (Employment Retirement Income Security Act of 1974, ERISA). In arbitrations, plaintiffs won more frequently and were awarded higher amounts in arbitration than in court trials. In arbitration, plaintiffs received more in high social context cases than in other cases.

Practical implications

The results show that employers lose more often and in larger dollar amounts in arbitration than in litigation. However, if arbitration rulings more closely matched the likely outcomes of trials, subsequent litigation would be less likely to be overturned, and transaction costs would be reduced. If this were the case, the arbitration of employment lawsuits would more closely match the arbitration of contractual grievances under the typical labor relations system, where the arbitrator’s decision is usually final and binding. This could be a better outcome for all stakeholders in the dispute resolution process.

Originality/value

This is the first study of its kind to examine actual workplace conflicts that result in employment-related lawsuits from the perspective of social contextual factors.

Details

International Journal of Conflict Management, vol. 27 no. 4
Type: Research Article
ISSN: 1044-4068

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Article
Publication date: 1 March 2001

NEIL G. WOLF and ROBERT P. BRAMNIK

The debate over pre‐dispute arbitration agreements for employment cases continues, despite the recent ruling from the Supreme Court. This article looks at this issue with…

Abstract

The debate over pre‐dispute arbitration agreements for employment cases continues, despite the recent ruling from the Supreme Court. This article looks at this issue with a particular view towards the securities industry. It discusses several factors that employers should weigh when deciding how to proceed.

Details

Journal of Investment Compliance, vol. 2 no. 2
Type: Research Article
ISSN: 1528-5812

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Book part
Publication date: 19 July 2016

J. Ryan Lamare

This chapter analyzes the extent to which more experienced employers, arbitrators, and attorneys fare better in securities industry arbitration. Although studies into…

Abstract

Purpose

This chapter analyzes the extent to which more experienced employers, arbitrators, and attorneys fare better in securities industry arbitration. Although studies into experience have identified a so-called repeat-player effect on outcomes, I argue that more nuanced considerations of experience are required.

Methodology/approach

I empirically analyze all employment arbitration awards from the securities system’s inception through 2008. I separate experience into two categories (between- and within-group effects) and run hybrid random- and fixed-effects regressions modeling increasing employer, attorney, and arbitrator experience on arbitration outcomes.

Findings

I find that between-group experience affects awards but that within-group experience is nonsignificant, except in civil rights cases. This implies that so-called repeat players gain an advantage over inexperienced players due to their entity-specific characteristics, not necessarily by learning to use the system to their advantage. I conclude that, although the securities arbitration system suffers from power imbalances, there is little evidence of systemic exploitation by firms.

Originality/value

Prior studies into employment arbitration are limited both by their definitions of experience and by their methodological approaches. I overcome these issues by employing a novel methodological approach to measure between- and within-entity experience, which adds a more multifaceted and nuanced framework to the literature than the common repeat-player versus single-player dichotomy.

Details

Managing and Resolving Workplace Conflict
Type: Book
ISBN: 978-1-78635-060-2

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Book part
Publication date: 29 March 2021

Aibak Hafeez and J. Ryan Lamare

We examine how different neutral sources and third-party neutral qualification differences relate to mediation and arbitration usage at large US firms. Neutral sourcing is…

Abstract

We examine how different neutral sources and third-party neutral qualification differences relate to mediation and arbitration usage at large US firms. Neutral sourcing is controversial, particularly in employment arbitration, where many have expressed concern that unregulated sourcing arrangements may bias outcomes in favor of employers. We use agency and structure theories to hypothesize that firms will be less likely to use mediation when the neutral is sourced as a result of court-annexed mediation, but that firms may be more likely to use arbitration when the neutral is sourced from a private third-party provider. Utilizing human capital theory, we also hypothesize that organizations will use both mediation and arbitration more frequently when neutrals are perceived to be more highly qualified. Empirically, we rely on data gathered from a survey of US Fortune 1000 corporations to test these hypotheses and find support for each of them. Our results suggest that, while firms uniformly value professionalization in their neutrals, employers may impose structures on themselves in high-stakes circumstances like arbitration to ensure standardized and consistent processes, but prefer agency in lower-stakes circumstances like mediation.

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Advances in Industrial and Labor Relations
Type: Book
ISBN: 978-1-83982-132-5

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Article
Publication date: 13 February 2009

Raymond Hogler, Michael A. Gross and Zinta S. Byrne

The purpose of this paper is to analyze the importance of dispute systems for academic employees and to propose a procedure of voluntary binding arbitration, which would…

Abstract

Purpose

The purpose of this paper is to analyze the importance of dispute systems for academic employees and to propose a procedure of voluntary binding arbitration, which would improve governance, promote organizational justice, and reduce litigation.

Design/methodology/approach

It is argued that the rationale for arbitration in the educational sphere is even more compelling than in the nonunion industrial workplace because higher education is premised on the concept of shared governance between faculty and administrators. Colleges and universities confront an environment of declining resources, escalating costs, and a consumerist view of education where relations between members of the educational community increasingly resemble market transactions rather than cooperative endeavors.

Findings

Given those trends, faculty would benefit from a system of conflict resolution that serves to safeguard professional standards, ensure organizational justice, and provide an effective workplace voice.

Research limitations/implications

As a research agenda, future studies could examine these assumptions by empirically testing and evaluating the contribution and benefit of arbitration in higher education.

Practical implications

Binding arbitration offers a viable means of protecting the interests of faculty and institutions.

Originality/value

This paper offers a case for implementing organizational justice principles in higher education and will be of interest to those in that field.

Details

International Journal of Conflict Management, vol. 20 no. 1
Type: Research Article
ISSN: 1044-4068

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Book part
Publication date: 30 December 2004

Alexander J.S. Colvin

This paper investigates the adoption, structure, and function of dispute resolution procedures in the nonunion workplace. Whereas grievance procedures in unionized…

Abstract

This paper investigates the adoption, structure, and function of dispute resolution procedures in the nonunion workplace. Whereas grievance procedures in unionized workplaces have been an important area of study in the field of industrial relations, research on dispute resolution procedures in nonunion workplaces has lagged behind. As a result, our knowledge of the development of nonunion procedures remains relatively limited. Similarly, with a few noteworthy exceptions (e.g. Lewin, 1987, 1990), our knowledge of workplace grievance activity is almost entirely based on research conducted in unionized settings. Given the major differences in the institutional contexts of union and nonunion workplaces in the United States, existing ideas about workplace dispute resolution developed in the unionized setting will likely require significant modification in order to understand dispute resolution procedures and activity in the nonunion workplace. Issues relating to dispute resolution in the nonunion workplace are of increasing importance to public policy given the combination of continued stagnation in levels of union representation and mounting concerns over rising levels of employment litigation in the courts. Knowing what nonunion dispute resolution procedures look like and how they function will help answer the question of what role these procedures may play in the future governance of the workplace.

Details

Advances in Industrial & Labor Relations
Type: Book
ISBN: 978-1-84950-305-1

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