Most union contracts include grievance procedures culminating in binding arbitration. Also, some employers have arbitration agreements requiring nonunion employees to arbitrate all employment claims, including discrimination charges.
The arbitration procedure generally involves a hearing, which is less formal than a court proceeding, followed by submission of written arbitration briefs.
Arbitration Pros and Cons
Prehearing procedures are typically much more streamlined than the lengthy process preceding a trial in court. Thus, the cost of obtaining resolution of a dispute is usually far less with this form of alternate dispute resolution than with conventional litigation.
A disadvantage of arbitration of employment disputes is that the grounds for appeal of an unfavorable decision following an arbitration hearing are much more restrictive than with the decision of a trial court. For the most part, employers and their arbitration attorneys get only one “bite at the apple.”
Another disadvantage is that arbitrators may be more prone than judges and juries to “split the baby” with compromise decisions. For example, it is not unusual in the arbitration of a discharge for the arbitrator to reinstate the employee, but without back pay. This effectively transforms the discharge into a suspension without pay for the entire time between the discharge and the arbitrator’s decision. In contrast, in court cases reinstatement is relatively rare, with back pay and other monetary awards the more common remedy if an employer loses a discharge case.
Role of the Arbitration Attorney
Representation at an arbitration hearing by an attorney experienced in arbitration, along with thorough arbitration briefs applying appropriate legal principles to the evidence presented at the hearing, can give an employer a decisive edge in binding arbitration.
Arbitration of labor and employment grievances involves application of a special and unique body of law. Knowledge of and experience with various arbitrators in the community is extremely helpful in choosing an arbitrator.
How We Can Help
For many years, the attorneys of Harris Dowell Fisher & Young, L.C., have represented employers in grievance arbitration. We bring to this process:
- The knowledge and experience with area arbitrators to assist in arbitrator selection.
- The trial skills and experience to successfully present important issues at arbitration hearings.
- Knowledge of the unique body of law applicable to arbitration.
- The research and writing capabilities to present the strongest case possible in arbitration briefs.
Non-Union Employment Arbitration
Application of of binding arbitration agreements to employment disputes outside the collective bargaining context is still very much an evolving area of law, one that has been the subject of numerous court decisions, including quite a number by the U.S. Supreme Court.
There are many potential pitfalls of such agreements, so employers must take considerable care in deciding whether to implement them, as well as in preparing the necessary arbitration agreement.
The attorneys of Harris Dowell Fisher & Harris, L.C., are well-prepared to assist in preparation and implementation of such arbitration programs.
Contact us to discuss how we may best assist you in this regard.