Rethinking Employment Law Strategies - Chapter 2 - AAA Handbook on Employment Arbitration and ADR - Third Edition

Author(s):

Paul Peter Nicolai

Page Count:

34 pages

Media Description:

1 PDF Download

Published:

December, 2015

Author Detail:

Paul Peter Nicolai is president of Nicolai Law Group. P.C., a firm that works with businesses on planning, ADR, and litigation matters. He holds a J.D. from Western New England College of Law and is admitted to the Massachusetts, New York, New Hampshire, Connecticut and Washington, D.C. Bars. Mr. Nicolai is also a member of the American Arbitration Association's national panel, has been recognized as a Best Lawyer in America for several years and has written many articles on business law issues, including Understanding Mass Claims Panels, which appeared in the DISPUTE RESOLUTION JOURNAL.

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Description:

Originally from:

AAA Handbook on Employment Arbitration and ADR - Third Edition

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I. Introduction

Employers have lost the war over whether handbooks can be enforceable contracts. Most states now hold that they can. The tests used to make this decision case by case are fact and motive driven. This means more cases require more discovery and trials. This increases cost and exposure to all parties.

The “standard” employment policy strategy has for the past decade or so been a combination of (1) creating a set of employment policies; (2) publishing those policies in an employee handbook; (3) including language in the employee handbook that it is only a guide; (4) including language in the employee handbook to the effect that it is not a binding agreement; and (5) hoping for the best.

The decision by the United States Supreme Court in Circuit City v. Adams,1 along with other legal developments, should cause employers to reconsider their employment policy strategies. They create a situation where employers can take a much more positive approach to controlling the process and limiting the cost of employment disputes.

A new strategy for handling employment disputes will benefit employers by reducing the legal costs associated with employment litigation and reducing some potential risk associated with these litigations. Even if an employer has employment practices liability insurance, setting up new employment policy strategies should lead to better underwriting and lower premiums.