Employment Rights Enforcement: Forums, Actors, And Outcomes

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This dissertation consists of three distinct but interrelated chapters. The (1) first chapter explores the current state of employment litigation in federal district courts using Administrative Office of the U.S. Courts data, which represents the universe of all civil claims filed and disposed of in federal court. The remaining chapters analyze data collected from a nationwide survey of over 1,200 practicing employment lawyer members of the National Employment Lawyers Association (NELA) and the California Employment Lawyers Association (CELA). The (2) second chapter examines how forums in which individual employment rights are heard- in civil courts or arbitration-influence employee remedies in discrimination claims using attorney descriptions of their most recent cases taken to adjudication in both forums. The (3) third chapter investigates how individual plaintiff characteristics and the institutional and organizational environments of claims affect the case selection decisions of employment plaintiff attorneys using attorney responses to vignettes. Each chapter is briefly summarized below. Chapter 1: Employment Litigation in Federal District Court The New Deal system of labor relations accurately depicted industrial relations in the mid-twentieth century, but is no longer plausible today. Indeed, the collective system of employee representation has been precipitously declining for nearly a half-century and private sector unionization rates have fallen below 7 percent today. Yet as the traditional system of labor relations based on unionization has declined, individual employment rights and litigation have expanded dramatically. In fact, federal employment discrimination claims increased more than 300 percent between the late 1970s and 2000. Despite this growth in employment law, too many fundamental questions about this system remain unanswered. This chapter illuminates essential characteristics of the employment rights regime by investigating federal district courts outcomes. I rely on the "Federal Court Cases: Integrated Database Series," comprising the universe of cases disposed in federal court between 1990 through 2012. With these data, I provide a broad-based, systematic examination of the nature of general civil litigation in federal courts. Specifically, I report on: (1) the quantity of employment litigation in the U.S.; (2) types of claims being filed; (3) how claims are being resolved; (4) time to proceed from filing to disposition; (5) employee outcomes - dispositions and award amounts, along with other analyses. Employment litigation has seen an across-the-board decline since the late 1990s, with the only category of cases to defy this trend being wage and hour claims under the Fair Labor Standards Act (FLSA). While class action litigation spiked at the turn of the century, a decline immediately followed. Here again, FLSA is the exception to the rule: FLSA class action filings have continued to soar through 2012 with no indication a crest has formed. Over time, fewer and fewer employee plaintiffs are receiving adjudications through trial. Curiously, despite a 25 percent reduction in total civil filings over the past 10 years and a dwindling reliance on the terminal stage of adjudication, the average time between filing and dispositions for tried cases has been increasing, standing at over 2 years in 2012. The fewer employee plaintiffs who do proceed to trial have experienced relatively stable success rates, maintaining distinct differences between plaintiffs' win rates in wage and hour, employment civil rights, and all other civil claims. Finally, award amounts in civil rights cases have steadily outpaced inflation while FLSA awards have stayed constant in inflation-adjusted dollars. This research provides industrial relations scholars with a better understanding of the current era where statutory employment rights, not unions, are the key factors influencing the web of rules at work and circumscribing managerial prerogatives. Chapter 2: Employment Discrimination Outcomes in Arbitration and Civil Litigation: A Tale of Two Forums In the wake of the Supreme Court's Gilmer decision in 1991, mandatory arbitration clauses, also known as "pre-dispute arbitration clauses," became an increasingly common fixture in employment agreements, applications, and handbooks in non-union organizations. As a condition of employment, employers require potential employees to waive their rights to resolve future legal claims through civil litigation in favor of resolution by private arbitration. To proponents, employment arbitration creates an accessible, expedient, and cheaper alternative to protracted civil litigation. To opponents, employment arbitration simply provides second class justice and a route for employers to escape liability under the law. The creation of a private, alternative forum for the resolution of individual employment rights is understandably provocative. Due to an inability to control for selection effects in publically available data, one of several lingering issues incident to arbitration is whether the forum in which a claim is heard-arbitration or civil courts-affects case outcomes. By surveying over 1,200 attorneys directly about their most recent employment discrimination cases taken to verdict in arbitration and civil litigation, this chapter presents the first systematic empirical comparison of outcomes between civil courts and arbitration. The ability to control for the legal basis for the claim, defendant size, use of summary judgment, merits of claims, and attorney and plaintiff characteristics represents a significant improvement over previous empirical research studies. Consistent with previous research, employee win rates in arbitration are lower compared to those in state and federal court. In addition, monetary award amounts and percentage of claim amount awarded to successful employees are substantially lower in arbitration when compared to outcomes in jury trials in state and federal court. Improving on previous empirical analyses, I find these inferior outcomes cannot be explained by systematic differences in case, defendant, plaintiff, or attorney characteristics between forums. Mandatory arbitration's endorsement by the U.S. Supreme Court was premised on the idea that it simply involved an alternative set of procedures for enforcing the same set of substantive rights. By collecting a new dataset from employment lawyers, my dissertation contributes to the literature by providing empirical evidence regarding arbitration's effects on employee outcomes and access to justice. Chapter 3: How Do Plaintiff Characteristics, Organizational Environments, and Mandatory Arbitration Shape Employment Attorney Case Selection? Evidence from a Quasi-Experiment Relying on industrial relations theory and the "new institutionalist" literature in sociology, I posit that the organizational environment of a claim will affect plaintiff attorney assessments concerning whether a claim is meritorious and their willingness to accept a potential claim for representation. Industrial relation scholars have long argued that conflict in the workplace must be understood in light of the social relations of the work environment. This tracks the sociological view that discrimination is socially constructed through a process embedded in a larger organizational environment. Consequently, questionable employment actions taken against an employee will not be perceived in a vacuum, rather, the action will be viewed in the context of the firm's overall workplace conditions. Accepting this social construction, it follows that attorneys will be influenced by the organizational environment of claims as well. This is not to say that lawyers fail to evaluate the merits of a potential case; rather, various workplace policies can suggest non-discriminatory practices, legal compliance, and adherence to social norms, influencing whether an attorney (or other decision-maker) finds a particular claim credible and convincing. As part of the employment lawyer survey, respondents were asked to respond to a vignette with key plaintiff-level, organizational, and institutional variables randomly manipulated. Findings reveal that the expected value of a claim is central to attorney case selection decisions, the organizational environment of a claim can signal compliance with antidiscrimination law, and the use of mandatory arbitration reduces the expected value of a claim and the willingness an attorney will accept it for representation. These findings contribute to our understanding of antidiscrimination law as a social system and show that attorneys respond to economic incentives, are influenced by policies indicating legal compliance, and view claims with mandatory arbitration as equally meritorious but less desirable.

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Arbitration; ADR; Employment Law


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Union Local


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Colvin,Alexander James

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Schwab,Stewart Jon
Katz,Harry Charles

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Industrial and Labor Relations

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Ph. D., Industrial and Labor Relations

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Doctor of Philosophy

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