Mandatory Arbitration: Why Alternative Dispute Resolution May Be the Most Equitable Way to Resolve Discrimination Claims

The number of employers that require employees to agree to mandatory arbitration of disputes as a condition of employment has increased in recent years. One particular motivating factor is an increase in the volume of discrimination claims, which has accompanied the expansion of the employee classes protected by state and federal anti-discrimination statutes. The employers\u27 goals in requiring arbitration are to avoid the expense and time involved in litigation, as well as the specter of unreasonable jury awards. More cynically, critics of mandatory arbitration suggest that another reason that employers favor arbitration is the perception that arbitration works to the disadvantage of employees. Part of the difficulty in establishing whether one party or the other benefits more from litigation or arbitration is the inherent differences in the cases that reach one forum or the other. An analysis finds no support for the idea that arbitration necessarily favors employers. Indeed, the cost of litigation makes it unlikely that an employee with a legitimate, though small value claim would even be heard in court. Instead, contingent-fee attorneys would tend to stay away from a small claim, while state and federal agencies, notably the federal Equal Employment Opportunity Corporation, have a bias toward settling claims, regardless of the equity of that settlement. Considering that the best resolution is one that both parties achieve freely on their own, both litigation and arbitration represent a type of systemic failure. Current research has found that arbitration is faster in achieving a resolution than is litigation. There is no way to establish whether payments or damages are higher in litigation than in arbitration, and research has failed to show a bias toward either employees or employers in arbitration. Indeed, establishing bias begs the fundamental question, which is whether a system that favors one side, employees, for instance, is actually more fair than a system in which either side could prevail. Ideally, the system should provide damages for employees who actually have been hurt by discrimination, while at the same time it should provide speedy exoneration for employers who have been unfairly tarred by accusations of discrimination. The present system does neither

The Hotel Industry Seeks the Elusive “Green Bullet”

Tasked with finding ways to operate in the most sustainable fashion possible, hotel industry managers must evaluate a tidal wave of supposedly green products and processes, while they also seek to balance the expectations of customers and the demands of owners. In the backdrop are existing government regulations at all levels, as well as the prospect of additional laws. This is the Gordian knot that participants faced in the first-ever Sustainability Roundtable, produced in October 2009 by the Cornell University Center for Hospitality Research

Using the Ethical Principles of Union Organizing to Avoid Card-Check Neutrality and Corporate Campaigns

In the summer of 2013, after protracted negotiations, Hyatt Hotels and unite/here reached a landmark labor agreement. Of note in this agreement is the commitment by both parties to a process that leads to what they term “fair elections” for future labor representation. The concept of what represents a “fair agreement” has been a subject of debate, proposed legislation, and litigation for decades. In this paper, we explore a different concept of fairness. Rather than allow years of discord to limit the parties’ options, the proposal is to have both parties communicate under consistent standards, without intimidation and unrest. Our goal in presenting this proposal is to create an environment where all parties to a union representation decision have the opportunity to be heard fairly and, most critically, the employees are able to choose whether they wish to be represented in a free and fair election. That is, those employee groups who wish to be represented have the opportunity for collective bargaining, while those who do not want to be organized are not forced into representation

The National Labor Relations Act Is Not Just for Unionized Employers Anymore

The National Labor Relations Act (NLRA) provides employees with the right to engage in “protected concerted activity,” including the right to discuss wages, hours, and terms and conditions of employment. It is often considered the “union law” in that it provides employees with the right to form a union and it regulates the union–management relationship. Because of this strong association with unions, non-union employers’ human resource directors rarely think of the act when making decisions on whom to hire, fire, promote, demote, or discipline. While it was true that in the past the National Labor Relations Board (NLRB, the agency that enforces the NLRA) rarely involved itself in disputes that did not include union organizing, collective bargaining, or any other union–management dispute, this is no longer case. The NLRB is now enforcing the NLRA’s protection of “concerted activity” to non-union employers, who indeed must understand and comply with the act

The Truth About Integrity Tests: The Validity and Utility of Integrity Testing for the Hospitality Industry

Although not commonly used for selecting hospitality employees, integrity tests can help employers determine which of their prospective hires are likely to engage in unproductive, dangerous, or otherwise risky actions on the job. Candidates are surprisingly candid in answering test questions about their workplace theft or drug abuse, but the tests also have control questions intended to indicate when an applicant is attempting to game the test. Moreover, the tests do not violate U.S. employment laws since they neither create adverse impact on protected groups nor violate provisions of the Americans with Disabilities Act. Although tests represent an additional expense in the hiring process, a study of a large hotel chain found that the savings in screening out potentially expensive employees more than made up for the costs of conducting the tests. Not only could the chain count on employees who were reasonably honest and drug-free, but it found a substantial reduction in costly workers\u27 compensation claims among the new hires. In the course of a year, the hotel chain administered an integrity test to just over 29,000 would-be employees, and hired just under 6,100 of those applicants. These data, which were made available by American Tescor, creator of the test, set up the opportunity to compare the workers\u27 compensation claims from the new hires with the claims of already incumbent employees. The screened hires experienced a markedly lower incidence of claims compared to the unscreened, existing employees. The average cost per claim for the unscreened employees was $3,446, as compared to$2,119 for the screened group. The annual average cost per employee for workers\u27 compensation claims was $97.77 for the unscreened group, but only$31.02 for the screened group

The Mixed Motive Instruction in Employment Discrimination Cases: What Employers Need to Know

In litigation regarding employment discrimination, the burden of establishing proof has continued to shift. As a result, employers and legal counsel need to be aware of the status of what they and human resources professionals should consider when an employee alleges that the employer has violated federal discrimination statutes. The original standard of proof required the plaintiff to establish that the employer discriminated against that person. Many cases still involve that approach, giving the plaintiff the burden of creating prima facie case. However, another line of rulings by the U.S. Supreme Court added an alternative method for addressing discrimination litigation, known as the mixed motive approach. The two-prong mixed motive case requires the employee to demonstrate that a protected characteristic (e.g., race, sex, national origin) was a substantial factor in an employer\u27s adverse action. If that is established, the employer then has the burden of proving that the decision would have been made in any event, regardless of the employee\u27s protected characteristic. As a practical matter, employers facing litigation of this type must consider whether and how to defend such a case. Even a win can be expensive, because in cases where there is a divided decision, the employer must pay the plaintiff\u27s attorney fees and court costs, as well as its own. Moreover, since the Civil Rights Act of 1991 places discrimination cases in front of a jury, a divided decision is seemingly more likely. Although that presumably gives both sides a win, it still means a large expense for the employer

Restaurants at the Crossroads: A State By State Summary of Key Wage-and-Hour Provision Affecting the Restaurant Industry

Restaurateurs face a remarkable tangle of laws and regulations that on their face are meant to protect workers, but which often serve to create a confusion for operators—and employment for labor attorneys. While many states simply apply federal wage and hour laws, others have been active in passing their own statutes, which set regulations that are more stringent than those of the federal government. Based on discussions at Cornell Legal Roundtables, this tool presents a comprehensive compilation of the wage-and-hour rules from all fifty U.S. states, plus the District of Columbia and Commonwealth of Puerto Rico. While this tool does not substitute for the advice of legal counsel, it provides an overview of regulations to guide restaurateurs as they set their human resource policies and procedures

The Hotel Industry Seeks the Elusive “Green Bullet”

Tasked with finding ways to operate in the most sustainable fashion possible, hotel industry managers must evaluate a tidal wave of supposedly green products and processes, while they also seek to balance the expectations of customers and the demands of owners. In the backdrop are existing government regulations at all levels, as well as the prospect of additional laws. This is the Gordian knot that participants faced in the first-ever Sustainability Roundtable, produced in October 2009 by the Cornell University Center for Hospitality Research.2010_Sherwyn_Hotel_industry.pdf: 151 downloads, before Aug. 1, 2020

Arbitration: A Positive Employment Tool and Potential Antidote to Class Actions

Published in conjunction with the Cornell Institute for Hospitality Labor and Employment Relations.The use of arbitration for employment and other workplace disputes has been the topic of much controversy. In examining various aspects of arbitration, this paper proposes arbitration as a fair and appropriate process for responding to employees’ workplace issues. The value of arbitration is notable, particularly considering the potential costs of litigation. Even considering Wal-Mart v. Dukes, the 2011 Supreme Court decision which tightened the requirements for certifying a class in a class action, employers are concerned that the expense or judgments resulting from litigation will put an entire company at risk. From the employees’ stance, a major argument against arbitration is the perception that the process favors employers. Indeed some statistics show that employers do win most arbitration cases. However, employers generally settle legitimate grievances when possible, leaving the questionable cases to emerge into arbitration or litigation. Another source of unfairness for employees is the difficulty of finding counsel for arbitration, but this occurs largely because less money flows through the arbitration process. In sum, the analysis presented here presents arbitration as the fairest, most economical, and speediest procedure to properly address employees’ complaints if a settlement cannot be reached.Gilman_202014_20Arbitration.pdf: 238 downloads, before Aug. 1, 2020

Retaliation: Why an Increase in Claims Does Not Mean the Sky Is Falling

Retaliation, the fastest growing cause of action in discrimination law, has gained considerable attention, following two cases decided by the U.S. Supreme Court. The 2006 Supreme Court case, White v. Burlington Northern, and the 2009 Supreme Court decision in Crawford v. Metropolitan Government of Nashville has made retaliation front-page news. White created legal ambiguities that allow plaintiffs’ lawyers to posture and leave management lawyers without the tools to adequately render legal advice. Crawford expanded the opposition clause, which involves an employee’s resistance to a perceived violation of discrimination statutes. While there’s no indication that either case should result in more plaintiff victories (nor prevent employers from managing their workforce), the cases will, in all likelihood, lead to a further increase in claims. They also could change some management practices, despite causing no major changes in plaintiffs’ abilities to succeed in their claims. Following extensive discussion at the 2008 and 2009 Labor and Employment Law Roundtables, we conducted this analysis to examine the effects of the White and Crawford cases and explain the law surrounding retaliation. Before we address these issues, however, we examine the statistical increase in retaliation claims and hypothesize why these cases are on the rise.2009_Sherwyn_Retaliation.pdf: 112 downloads, before Aug. 1, 2020