Labor And Employment Arbitration WORK

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The JAMS Employment Practice Group includes retired federal, state trial and appellate judges and former litigators with years of dispute resolution experience, deep subject matter expertise and comprehensive knowledge of federal and state case law and statutes. They are adept at managing the emotional and legal aspects of sensitive employment matters.

Our neutrals receive ongoing training in alternative dispute resolution (ADR) and stay abreast of emerging employment law issues, including claims under the Families First Coronavirus Response Act (FFCRA) and pandemic-related unsafe working conditions and retaliation claims. JAMS also provides neutrals and parties with live tech support during virtual and hybrid arbitration and mediation sessions.

JAMS offers cost-effective options to resolve employment matters of every type and size. Our highly skilled case managers can provide a list of panelists best suited to handle your dispute, based on their experience, background, availability, rates and approach to ADR. JAMS neutrals collaborate with all parties to design flexible, individualized solutions, including mediation, arbitration, neutral investigations and evaluations, mock trials, settlement allocations and reference and special master assignments.

JAMS has handled thousands of in-person and remote employment mediations and arbitrations, ranging from single plaintiff cases to large class and mass actions. Our neutrals have extensive experience in matters involving:

Alternative dispute resolution (ADR) procedures are becoming more common in employment contracts, human resources manuals, and employee handbooks. The AAA can help resolve sensitive workplace disputes efficiently and expeditiously.

Workplace disputes can arise out of an employer plan (the employer has drafted a standard arbitration clause for use with all its employees), an executive/negotiated employment agreement or contract (the employee has had the ability to negotiate the terms and conditions of the employment agreement) or an independent contractor agreement (working or performing as an individual and not incorporated) with a business or organization and the dispute involves work or work-related claims, including any statutory claims.

The AAA has been at the forefront in developing standards of fairness for disputes between employees/individuals and companies. In May 1995, the AAA developed the Employment Due Process Protocol in cooperation with a special task force composed of individuals representing management, labor, employment, civil rights organizations, private administrative agencies, government, and the American Arbitration Association. The goal of the Protocol, in concert with the Employment Arbitration Rules, is to ensure fairness and equity in resolving workplace disputes. The Due Process Protocol encourages mediation and arbitration of statutory disputes, provided there are due process safeguards.

The American Arbitration Association has developed two sets of initial discovery protocols to encourage early exchange of documents and targeted discovery to increase the speed and efficiency of the arbitration process. The link below provides a highlight of the protocols.Employment Discovery Protocols Fact Sheet

More than 80% of AAA employment arbitrations are resolved prior to a final award, often due to the benefits of mediation. While parties may include mediation in their contract as a step prior to arbitration, parties can agree to utilize AAA mediation services at any time during an arbitration to assist them in reaching a mutual resolution to their dispute.

During AAA administration of employment arbitrations, mediation is discussed at various stages, including the initial management conference call, to ensure parties not only understand it is an option but also are aware of the benefits it can have toward a speedy and cost-effective resolution.

The AAA Employment Mediation Procedures, while providing for a more informal way to resolve an employment dispute, contain the high standards necessary for a fair and equitable process. The AAA has a roster of trained and experienced mediators with the expertise required to assist parties in settling their disputes.

If an employer intends to utilize the dispute resolution services of the Association in an employment ADR plan, it should, at least 30 days prior to the planned effective date of the program: (1) notify the Association of its intention to do so; and (2) provide the Association with a copy of the employment dispute resolution plan. If an employer does not comply with this requirement, the Association reserves the right to decline its administrative services. Copies of all plans should be sent to the American Arbitration Association, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043; Email: casefiling@adr.org.

Parties who use the American Arbitration Association (AAA) to resolve labor disputes have options, either to proceed with the standard AAA arbitration that uses theAAA Labor Arbitration Rules or to utilize streamlined, less expensive procedures, as follows:

AAA Grievance Mediation Services are provided to parties to collective bargaining agreements who decide to use mediation (a non-binding process) on an informal basis for selected grievances or who agree to include mediation in their collective bargaining agreement as a step prior to arbitration.

Arbitration can be a viable dispute resolution technique in a wide variety of pension and welfare disputes. They range from disagreements over what the terms of a pension plan should be to disputes arising under plans administered by joint labor-management boards and disputes involving a plan sponsor of a multi-employer plan.

Jointly administered multi-employer labor-management employee-benefit trust funds grew from the Taft-Hartley Act of 1947 and exists to provide employees and their families and dependents with pensions upon retirement. They are administered by boards of trustees on which labor and management are equally represented. The boards receive contributions and distribute funds to employees in the form of benefits, in accordance with provisions of collective bargaining and trust agreements and the law.

Clients include labor unions, guilds, corporations, not-for-profit entities, credit unions, co-operative and condominium associations, universities and educational organizations, and federal, state, and local governments.

The U.S. Supreme Court has held that labor unions charging union fees to non-member employees must provide an explanation of the basis for the fees and an opportunity to challenge the fee amount. The AAA developed the Rules for Impartial Determination of Union Fees to assist parties at addressing and resolving such challenges.

The Commission in 1997 adopted the Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment (July 10, 1997) (Policy Statement). Since its issuance, the Supreme Court has ruled that agreements to arbitrate employment-related disputes are enforceable under the Federal Arbitration Act (FAA) for disputes between employers and employees. Circuit City Stores v. Adams, 532 U.S. 105 (2001). In other arbitration-related cases it has decided since 1997, the Court rejected concerns with using the arbitral forum - both within and outside the context of employment discrimination claims. Those decisions conflict with the 1997 Policy Statement.

Case law also now makes clear that the EEOC continues to be fully available to employees as an avenue to assert EEO rights and to investigate in the public interest, regardless of whether the parties have entered into an enforceable arbitration agreement. In 1991, the Supreme Court explained that an arbitration agreement did not preclude an individual's right to file a charge and have the case investigated by the EEOC. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991) (holding that an ADEA claim was subject to compulsory arbitration, but explaining that "an individual ADEA claimant subject to an arbitration agreement will still be free to file a charge with the EEOC.") In 2002, the Supreme Court further held that an arbitration agreement between an employer and employee does not bar the EEOC from pursuing victim-specific relief in litigation on behalf of an employee who files a timely charge of discrimination. EEOC v. Waffle House, Inc., 534 U.S. 279 (2002)

The Supreme Court decided many arbitration cases after 1997 that conflict with the Policy Statement, including several that directly implicated allegations of employment discrimination or related federal labor and employment laws:

Therefore, the Policy Statement on Mandatory Binding Arbitration does not reflect current law, is rescinded, and should not be relied upon by EEOC staff in investigations or litigation. Nothing in this rescission should be construed to limit the ability of the Commission or any other party to challenge the enforceability of a particular arbitration agreement.

The state laws can run afoul of federal preemption, which generally holds valid arbitration agreements are enforceable and should be treated like any other legally formed contract between employers and employees.

The US Supreme Court has consistently held employers can enforce individual arbitration agreements as well as class action language prohibiting an employee class from launching a collective complaint through arbitration against an employer.

The arbitration-friendly rulings have led more employers to use the agreements in an attempt to mitigate exposures to expensive jury-trial outcomes, especially now as workers return to offices following the worst episodes of the Covid-19 pandemic, the lawyers said. 2b1af7f3a8

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