Arbitration: A Positive Employment Tool and Potential Antidote to Class Actions
Gilman, Gregg J.D.; Sherwyn, David J.D.
The use of arbitration for employment and other workplace disputes has been the topic of much controversy. In examining various aspects of arbitration, this paper proposes arbitration as a fair and appropriate process for responding to employees’ workplace issues. The value of arbitration is notable, particularly considering the potential costs of litigation. Even considering Wal-Mart v. Dukes, the 2011 Supreme Court decision which tightened the requirements for certifying a class in a class action, employers are concerned that the expense or judgments resulting from litigation will put an entire company at risk. From the employees’ stance, a major argument against arbitration is the perception that the process favors employers. Indeed some statistics show that employers do win most arbitration cases. However, employers generally settle legitimate grievances when possible, leaving the questionable cases to emerge into arbitration or litigation. Another source of unfairness for employees is the difficulty of finding counsel for arbitration, but this occurs largely because less money flows through the arbitration process. In sum, the analysis presented here presents arbitration as the fairest, most economical, and speediest procedure to properly address employees’ complaints if a settlement cannot be reached.
Published in conjunction with the Cornell Institute for Hospitality Labor and Employment Relations.
arbitration; Walmart v. Dukes; employment tools; employee complaints
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