Labor and Employment Arbitration: What's Justice Got to Do with It? - Chapter 6 - AAA Handbook on Labor Arbitration & ADR, 3rd Edition
Dennis Nolan is the Webster Professor of Labor Law Emeritus at the University of South Carolina School of Law, and now a full-time arbitrator and mediator. He serves on the labor panels of the AAA and the Federal Mediation and Conciliation Service, as well as other private panels. He is also a member and former president of the National Academy of Arbitrators. The idea for this chapter was generated by a talk given by the author at the Benjamin Aaron Lecture at UCLA. The author wishes to thank Marie Monroe for her diligent research assistance.
LABOR AND EMPLOYMENT ARBITRATION: WHAT’S JUSTICE GOT TO DO WITH IT?
This chapter addresses the coming third generation of cases dealing with individual employment arbitration. The first generation climaxed in the Supreme Court’s 1991 decision in Gilmer v. Interstate/Johnson Lane.1 Gilmer unequivocally established the general legitimacy and enforceability of pre-dispute agreements to arbitrate individual statutory claims. The second generation of cases, which continues today, largely completed the extension of Gilmer to other sorts of statutory claims, to other sorts of employers, and to other sources of arbitration agreements. Until the Supreme Court speaks again, the landmark case of the second generation is likely to be Judge Harry Edwards’ 1997 opinion in Cole v. Burns International Security Services.2 Cole and other cases adopted a narrow interpretation of the Federal Arbitration Act’s exclusion of contracts of employment and declined to draw distinctions between the statute involved in Gilmer (the Age Discrimination in Employment Act—ADEA) and other individual rights statutes.3 Those cases also worked through most aspects of the “consent” issue, holding that employees who accept an arbitration agreement are bound by it.