Development in Employment Arbitration - Dispute Resolution Journal - Vol. 52, No. 1

Author(s):

Mei L. Bickner

Christine Ver Ploeg

Charles Feigenbaum

Page Count:

15 pages

Published:

February, 1997

Jurisdictions:

United States

Practice Areas:

Employment,

Court Decisions

Author Detail:

Mei L. Bickner is an employment and labor arbitrator, mediator, and a factfinder specializing in discrimination and sexual harassment cases. She is currently on leave from California State University, Fullerton, where she is a professor in the School of Business Administration and Economics teaching employment relations and dispute resolution. She is a member of the National Academy of Arbitrators and a recent chair of its research committee.

Christine Ver Ploeg is a professor of law at William Mitchell College of Law in St. Paul, Minnesota, where she teaches in the field of dispute resolution. She has been a member of the National Academy of Arbitrators since 1988. Charles Feigenbaum is a labor and employment arbitrator and a member of the National Academy of Arbitrators.

This article, while it reports on a study performed under the auspices of the Research Committee of the National Academy of Arbitrators, does not represent the official or unofficial views or policies of that organization. The assistance of John Van N. Dorr, Robert L. Douglas, Dr. M. Lauren Ficaro, Dr. Susan A. Gallick and William J. Miller Jr. in collecting the data for this study is gratefully acknowledged.

The authors have benefitted greatly from the suggestions and criticisms of the early draft of the paper from Benjamin Aaron, Yolande C. Adelson, Reginald Alleyne, Robert L. Douglas, Walter Gershenfeld, Alvin L. Goldman, Mark I. Lurie and Charles M. Rehmus.

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Description:

Originally from Dispute Resolution Journal

The issues arising out of the implementation of pre-dispute employment arbitration plans are hotly contested. Part of the problem is the lack of definitive guidelines by the courts on the direction that such plans are expected to take in order to protect both employers’ and employees’ rights. The result is that employers’ opinions of the plans vary widely, as do the nature of the plans themselves. The authors focus the issues by reporting the results of a survey on employerpromulgated arbitration procedures, touching on the present legal status of such plans and summarizing the ongoing debate regarding them.

In 1991 the U.S. Supreme Court issued a decision, Gilmer v. Interstate/Johnson Lane Corporation,1 which many employers have interpreted as a green light for implementing predispute arbitration plans for their unrepresented employees. While decades of experience with arbitration for “represented employees” (employees covered by a collective bargaining agreement) have resulted in widespread acceptance of both the concept of arbitration and the procedures that have evolved to support it, the more recent use of arbitration to resolve the employment claims of “unrepresented employees” is more controversial and raises consequential new procedural and substantive issues.