Arbitrarily Selecting Black Arbitrators

Calls for increased diversity among arbitrators have surged with the growth of the employer movement, so-called mandatory arbitration, which requires employees to agree to arbitrate employment discrimination matters as a condition of employment. Despite good-faith efforts by neutral service providers, civil rights organizations, bar associations, and employer and employee groups to identify and address the need for more diverse arbitrators in mandatory arbitration, many commentators still lament that this diversity problem reflects negatively on access to justice. With the #MeToo movement’s focus in recent years on the lack of a public and transparent resolution for sexual harassment matters, as well as rap music mogul Jay-Z’s late 2018 effort to identify more black arbitrator candidates for his commercial arbitration matter, concerns about the lack of diversity among arbitrators have become even more prominent. However, the core of the problem remains: despite efforts to increase diversity in arbitrator pools, parties still have discretion to select the arbitrator. Businesses (and even, to some extent, employees) have no incentive to select an arbitrator solely because of the arbitrator’s diversity profile. Representatives for businesses and employees want to win. They believe that result is best achieved by selecting arbitrators they know. Risk aversion prevents those representatives from selecting unfamiliar black and other nonwhite, male arbitrators, despite ongoing diversity efforts to populate arbitrator pools with more of these individuals. This Article explores how this “win first” dynamic hinders attempts to address arbitrator diversity and suggests a different approach by neutral service providers that mimics the selection of federal judges. This new selection process will involve the creation of a pool of diverse arbitrators with outstanding qualifications. Then, instead of having the parties choose the actual arbitrator, a neutral service provider will select the arbitrator assigned to the parties in a random manner, similar to how federal courts assign judges to cases without party input

Against Employer Dumpster-Diving for Email

Recent attorney client-privilege cases ojfer a modern understanding of reasonable expectations of employee privacy in the digital age. Today employees are sending an increasing number of electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality. Historically, courts summarily dispensed with these matters by finding that an employer policy establishing employer ownership of any communications made through employer-provided devices eliminated any employee expectation of privacy in the communications and waived any viable privacy challenges to employer review of those communications. Nevertheless, within the last couple of years, several cases involving employee assertions of attorney-client-privilege protection in emails sent on employer-provided devices suggest new thoughts about reasonable workplace privacy expectations. As employees must communicate through employer-provided digital devices, day and night, these attorney-client-privilege cases help expose the fallacy of assuming employees cannot reasonably expect that emails will remain private if employers\u27policies mandate that such communications are not private. These new cases and related ethics opinions about privileged email offer a modern lens through which one may now view employee privacy expectations under a new paradigm that replaces the facade of assuming employees have no expectation of privacy due to employer policies. Digital-age expectations regarding employee use of smart cellular phones, portable laptops, and other employer-provided electronic devices to communicate beyond standard work hours leaves little expectation or reasonable opportunity for employees to communicate privately and confidentially by any other means. as a result, this article asserts that employer efforts to mine employer-provided devices for employee emails, after disputes arise, comprises a form of electronic dumpster-diving that should not be tolerated by courts, legislatures, or attorney ethics committees

Preempting Justice through Binding Arbitration of Future Disputes: Mere Adhesion Contracts or a Trap for the Unwary Consumer

When individual consumers with little or no bargaining power have not consented to particular contractual terms, the use of the courts and judicial interpretations may be the only way to promote justice and allow consumers to protect themselves. Unfortunately, the trend, as established in recent United States Supreme Court decisions, is to apply the deferential standards of enforcement from commercial transactions to situations involving adhesion contracts between an individual consumer and a business entity where equal bargaining power is clearly lacking. Perhaps the most pervasive example of this trend has been the Supreme Court\u27s zealous enforcement of arbitration clauses under the Federal Arbitration Act ( FAA ). The increased use of arbitration, like many other forms of alternative dispute resolution ( ADR ), has become a preferred method for those who suggest that there might be a better way for resolving litigation disputes. Concerns over this country\u27s litigation explosion may have fostered the growth of ADR; many foes of the litigation process are enrolling in the ADR movement. The proponents of ADR suggest that arbitration is a fast, effective means for resolving disputes without the delays and exorbitant costs of litigation. Because of these purported benefits, several jurists, scholars, and practitioners are joining the ADR ranks. As a result, many new firms and businesses are surfacing to take advantage of the big money involved in ADR services. Section II of the Article defines the problem with adhesion agreements to arbitrate future consumer disputes. Section III of the Article provides a framework for analyzing these adhesion agreements and suggests appropriate responses to correct current problems in this area. Finally, this Article concludes that requiring knowing and voluntary consent to an arbitration clause is the only just method that gives both consumers and merchants a clear choice in determining the appropriate forum for resolving their disputes

Mediating Psychiatric Disability Accommodations for Workers in Violent Times

Most workers in the United States are unhappy. Manifestations of that dissatisfaction can result in many workplace dilemmas when confronted with the situation of an employee dealing with mental illness. Fears of violence in our society have become prevalent with the increasing ferocity of high-profile and mass attacks in and out of the workplace. In believing mental illness contributes to some of these incidents, employers and co-workers have become extremely sensitive when a co-worker with a psychiatric disability has exhibited harassing or threatening behavior. The Americans with Disabilities Act (ADA) was amended by the ADA Amendments Act of 2008 (ADAAA), which became effective in 2009. That amendment intended to change the legal landscape when analyzing disability discrimination claims regulated by the ADA. The analysis after the ADAAA has shifted from the question of whether an individual meets the statutory definition of being disabled to the question of whether a reasonable accommodation exists that allows a disabled employee to perform the essential functions of the job. Although the ADAAA became effective in 2009, many of its implications are starting to become a reality a decade later. A pressing question created by the ADAAA relates to the increased need to determine the nature of a reasonable accommodation for employees, including those with psychiatric disabilities. Employers must now face the reality that the ADAAA could compel them to explore reasonable accommodations more regularly for employees coping with mental illness. When the possibility of violent or harassing behavior ensues, employers and co-workers could rely on stigma and stereotyping out of expediency rather than acting on sound medical judgment required by the ADA in assessing an accommodation for an employee’s psychiatric disability. This Article proposes the use of mediation as a more significant tool in resolving the balance of concerns presented in these situations. By employing experienced mediators with skills in understanding workplace dispute resolution as well as mental health issues, employers and employees can identify a reasonable accommodation in a fair manner that works for all the interested parties

Mediating Psychiatric Disability Accommodations for Workers in Violent Times

Most workers in the United States are unhappy. Manifestations of that dissatisfaction can result in many workplace dilemmas when confronted with the situation of an employee dealing with mental illness. Fears of violence in our society have become prevalent with the increasing ferocity of high-profile and mass attacks in and out of the workplace. In believing mental illness contributes to some of these incidents, employers and co-workers have become extremely sensitive when a co-worker with a psychiatric disability has exhibited harassing or threatening behavior. The Americans with Disabilities Act (ADA) was amended by the ADA Amendments Act of 2008 (ADAAA), which became effective in 2009. That amendment intended to change the legal landscape when analyzing disability discrimination claims regulated by the ADA. The analysis after the ADAAA has shifted from the question of whether an individual meets the statutory definition of being disabled to the question of whether a reasonable accommodation exists that allows a disabled employee to perform the essential functions of the job. Although the ADAAA became effective in 2009, many of its implications are starting to become a reality a decade later. A pressing question created by the ADAAA relates to the increased need to determine the nature of a reasonable accommodation for employees, including those with psychiatric disabilities. Employers must now face the reality that the ADAAA could compel them to explore reasonable accommodations more regularly for employees coping with mental illness. When the possibility of violent or harassing behavior ensues, employers and co-workers could rely on stigma and stereotyping out of expediency rather than acting on sound medical judgment required by the ADA in assessing an accommodation for an employee’s psychiatric disability. This Article proposes the use of mediation as a more significant tool in resolving the balance of concerns presented in these situations. By employing experienced mediators with skills in understanding workplace dispute resolution as well as mental health issues, employers and employees can identify a reasonable accommodation in a fair manner that works for all the interested parties

Introduction: What Matters for Black Workers After 2020?

This paper operates as the Introduction to a Symposium that resulted from a Call for Papers discussing the topic of What Matters for Black Workers after 2020? to be published in the 25th volume of the Employee Rights and Employment Policy Journal for 2021. This paper briefly discusses the papers in that Symposium publication authored by Jamillah Bowman Williams, Michael Duff, and Henry Chambers that address this topic. I thank Noah Zatz, Marty Malin, Michael Oswalt, Marcia McCormick, and Tristan Kirvan for their dedicated efforts, feedback, and encouragement in completing this Symposium issue for the journal on this very important topic of addressing concerns for Black workers. I am also grateful to the Labor Law Group who supported the development and completion of this Symposium issue and asked me to be their Symposium Editor representative

Developing Workplace Law Programming: A Labor of Love

Professor Green reflects and comments on his work in developing workplace law programming as a key component of the annual SEALS program

A 2001 Employment Law Odyssey: The Invasion of Privacy Tort Takes Flight in the Florida Workplace

Computer use has exploded over the last twenty years. Even more rapid growth of technology throughout the 1990s has culminated with the dynamic and exponentially increasing use of the Internet. This technology spurt has led the way to many more business opportunities. With those increasing opportunities more problems have arisen, especially with protecting privacy on a domestic and an international scale after the European Union Directive. The European Union Directive created a profound impact on multinational employers, especially those in the U.S., by requiring guarantees that all private information gathered by companies doing business in countries that are members of the European Union be protected