Thursday, March 20, 2008

Bales and Plowman on Compulsory Arbitration as Part of a Broader Employment Dispute Resolution Process

Bales Plowman Rick Bales (Chase-N. Ky.) (left) and Jason Plowman (Wash. U. St. Louis student) (right) have posted on SSRN their forthcoming article in the Hofstra Labor & Employment Law Journal: Compulsory Arbitration as Part of a Broader Employment Dispute Resolution Process: The Anheuser-Busch Example.

Here's the abstract:

Federal and state reporters are filled with examples of lopsided arbitration agreements drafted by employers with the apparent intent of discouraging employees from successfully bringing valid claims. The case reporters contain far fewer examples of employment dispute resolution programs that are carefully designed to ensure that employees receive a fundamentally fair forum for the resolution of their employment disputes, for the obvious reason that employees are less likely to challenge these programs. Similarly, most scholarly commentary focuses on the overall merits and demerits of employment arbitration, or on problems posed by particular provisions often found in employment arbitration agreements, but not on employment dispute resolution programs that are designed with an eye toward employee fairness. Both the case law and the legal commentary, therefore, provide an arguably distorted picture of extant employment dispute resolution programs - from these perspectives, all the apples look rotten.

This article begins from the premise that much can be learned from closely examining a well-drafted and -implemented employment dispute resolution program. Such a program can (1) provide scrupulous employers with a model for drafting fair, ethical, and enforceable dispute resolution programs; (2) provide a benchmark to courts in their decisions of whether to enforce other employment dispute resolution programs; and (3) serve as a reminder that not all the arbitral apples are rotten. This article examines in detail the Dispute Resolution Program of Anheuser-Busch, and finds that it is possible for an employment dispute resolution program culminating in binding arbitration simultaneously to serve (1) the employer's goal of containing employment litigation costs, (2) the employee's goal of access to a fair forum for resolving employment disputes, and (3) both parties' goal of promoting the non-adversarial resolution of employment disputes.

The findings of this article are particularly important now that Congress appears increasingly likely to consider statutory amendments prohibiting predispute employment arbitration agreements. This article should not, however, be taken as a blanket endorsement of employment arbitration. We argue merely that employment arbitration can be fair to employees, not that employment arbitration is necessarily, or even usually, fair.

This piece is a welcome counterpoint to the growing cries in the academy to banish mandatory arbitration from the employment law context.  My own question is: how do we incent employers to self-regulate in this fair manner beyond mere education of the potential benefits?


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