Friday, April 20, 2007

Bales in the Daily Labor Report on Updated Guidance on Employment Arbitration Issues

Bales Big kudos to my blogging partner-in-crime, Rick Bales (Chase-Northern Kentucky), for a long article summarizing his paper at the NAA's Protocol Conference last weekend in today's BNA Daily Labor Report.

Here's a taste:

The 1995 due process protocol on employment arbitration needs to be updated to provide guidance to arbitrators, employers, and the courts on a number of critical legal issues that have arisen since then, a law professor said in a paper presented April 13 at a National Academy of Arbitrators conference. The protocol drafted by a task force representing employers, employees, and arbitration service providers "set minimum procedural safeguards for inclusion in all employment arbitration agreements" and has been "extremely influential" with many employers and courts, Professor Richard A. Bales said in his paper. However, he observed that the protocol's drafters never anticipated some of the fairness issues that have developed in the past 12 years.

Bales teaches at Northern Kentucky University's Chase College of Law. In his paper, he reviews the case law on a number of contested issues affecting whether an employer's arbitration plan is an enforceable contract, whether the plan creates barriers that prevent employees from pursuing their employment law claims, whether the arbitration procedures are fair, and whether employees can obtain all the remedies they would be entitled to if successful in court.  "A procedurally lopsided arbitration agreement that effectively waives an employee's ability to enforce an underlying statutory antidiscrimination law ... would effectively waive the employee's substantive rights, contrary to the Supreme Court's prescription" in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 55 FEP Cases 1116 (1991), Bales said. He asserted that "as some unscrupulous employers continue to find new and inventive ways to tilt the arbitral playing field in their favor, courts should uphold their responsibility to ensure fair arbitral processes by refusing to enforce lopsided arbitration agreements."

You can download Rick's full article, which will appear in Volume 12 of the Employee Rights & Employment Policy Journal, here.

Way to go, Rick!


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