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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

Keywords

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.

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 experience…

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

Keywords

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.

Details

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

Keywords

Book part
Publication date: 19 July 2016

Alexander J. S. Colvin

The decline of collective representation and rise of individual employment rights is a transformative shift in employment relations that has changed the landscape of workplace…

Abstract

Purpose

The decline of collective representation and rise of individual employment rights is a transformative shift in employment relations that has changed the landscape of workplace dispute resolution. I propose a model that seeks to provide a new approach to understanding how workplace dispute resolution functions in the era of individual employment rights.

Methodology/approach

The model I propose focuses the analysis on the elements that connect the structure of rights that are enacted to the patterns of employment practices in the workplace.

Findings

My argument is that the systems for enforcement of individual employment rights and the mechanisms of representation for the employees affected are as important as the substantive rights themselves in determining the impact of the individual rights regime. These three elements combine to determine the degree to which the individual employment rights serve as an effective source of power for employees in relation to their employers.

Research implications

The establishment of these sources of power is what then results in the individual rights regime producing an effect on the employers’ patterns of practices in the workplace and ultimately determining the nature and character of the employment relationship.

Details

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

Keywords

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 workplaces have…

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

Abstract

Details

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

Book part
Publication date: 19 November 2019

David Lewin and Paul J. Gollan

Abstract

Details

Advances in Industrial and Labor Relations
Type: Book
ISBN: 978-1-83909-192-6

Book part
Publication date: 29 March 2021

Steven E. Abraham and Paula B. Voos

We examine the evolution of labor arbitration decisions between 1988 and 2018 in which a union-represented employee was alleged to have committed sexual harassment. We find that…

Abstract

We examine the evolution of labor arbitration decisions between 1988 and 2018 in which a union-represented employee was alleged to have committed sexual harassment. We find that management punished sexual harassment more stringently over time and that arbitrators became more sensitive to whether or not good procedure was followed by management over time. Distributive justice was also a major concern for arbitrators. The results suggest that it is essential for management to exercise procedural justice in disciplining employees, but that it is just as important for management to consider distributive justice when it comes to imposing discipline for inappropriate behavior.

Details

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

Keywords

Book part
Publication date: 2 February 2018

Jonathan Hamberger

There has been considerable research into different approaches to workplace dispute resolution in the United States (US), the United Kingdom (UK), and to a lesser extent other…

Abstract

There has been considerable research into different approaches to workplace dispute resolution in the United States (US), the United Kingdom (UK), and to a lesser extent other English-speaking countries. This chapter considers what guidance this research can provide into the practical implications of these different approaches.

One frame of reference for evaluating different approaches to workplace dispute resolution is provided by Budd’s three objectives of the employment relationship: equity, voice and efficiency.

While dispute resolution procedures can contribute to all three objectives, there can be negative consequences for employees who make use of formal workplace dispute resolution procedures. It is desirable that workplace disputes be resolved quickly and informally.

Such an approach places considerable weight on the skills of line managers. Unfortunately, there is evidence of a preference among line managers to replace pragmatic approaches to conflict resolution with a rigid adherence to process and procedure. This is partly due to a lack of skills, but is often compounded by inadequate support from senior management.

While it is important for organisations to have formal workplace dispute resolution procedures, the focus should be on line managers. The role of human resources staff and senior management should primarily be to monitor the dispute resolution system, ensure that it is operating effectively and deal with any emerging issues. They should ensure appropriate training is in place and provide appropriate support to line managers. Only when line managers have failed to resolve disputes should they become directly involved.

Details

Advances in Industrial and Labor Relations, 2017: Shifts in Workplace Voice, Justice, Negotiation and Conflict Resolution in Contemporary Workplaces
Type: Book
ISBN: 978-1-78743-486-8

Keywords

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