Thursday, February 7, 2008

Empirical Work on Employment Arbitration

Colvin Alexander Colvin (Penn St. Dep't Labor Studies & Ind. Rel.) has just posted on SSRN his new article (published this week in EREPJ) Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?  Here's the abstract:

This article reviews the existing empirical research on employment arbitration and presents new findings based on analysis of data from recent American Arbitration Association employment arbitration case filings. Whereas past research often concluded based on more limited datasets that outcomes from employment arbitration were generally similar to those from litigation, results of the present study, which is based on a larger dataset focused on cases involving employer promulgated agreements, indicate that both employee win rates and damage awards in employment arbitration are significantly lower than in litigation. By contrast, results of the present study confirm previous research findings that time to hearing is generally shorter in employment arbitration than in litigation. As with past research, the present study finds evidence of a repeat player effect, though with some uncertainty as to the causal explanation for this effect. Self-representation of employees is found to be associated with significantly worse employee win rates and damage awards, particularly where the case involves by a repeat employer-arbitrator pairing. Lastly, the article reviews research indicating some positive impacts of employment arbitration on the adoption and operation of internal organizational dispute resolution procedures.

Most articles about employment arbitration are either doctrinal (e.g., do such agreements, or certain clauses often found in such agreements, fit within the contract law doctrine of unconscionability) or normative (employment arbitration is bad for employees because it's coercive).  Colvin is one of the few folks conducting real research in this field; this is a fantastic example of his important work.


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Excellent post. Confirms what many employment lawyers have thought for a long time. I hope this empirical research achieves big circulation in the employment law community. I'll do my part by tracking back to your post in my blog.

Posted by: Eugene Lee | Feb 7, 2008 2:01:30 PM

This is a very interesting and important article. Of course, it creates a taste for more empirical work in the area.

One of my questions is, to what extent, is the existence of an imposed employment arbitration agreement a barrier to people bringing claims that, in absence of such an agreement, they might take to court. Or, do more employees take advantage of the availablity of arbitration for claims that they otherwise would not take to court.

Posted by: Mike Zimmer | Feb 7, 2008 2:38:01 PM

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