Forced arbitration is when employees faced with an issue at work are forced to have an arbitration instead of being able to go to court with a fair judge and jury. Often times, as a condition of employment, employers will not hire a worker, or could possibly fire a worker, unless they “consent” to an arbitration clause. Other times it is just assumed that employees agreed to it if they continue to work for their employer after an arbitration policy is announced.

Arbitrators are not judges. They do not need to know the law or have any relevant experience. Even though the arbitrators are not judges, their decisions are final. Also, there are no appeals for arbitrator decisions. They do not have to justify their decisions and the process takes place behind closed doors with no public record. The arbitrators charge parties for their services and often work for the same employer numerous times, tipping the odds significantly in the favor of the employer. One arbitrator and retired trial judge even stated, “You would have to be unconscious not to be aware that if you rule a certain way, you can compromise your future business.”

Continue Reading Arbitration Fairness Act (AFA), H.R. 1873 and S. 987

On Wednesday, March 16, 2011, the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado, issued a decision that reaffirms the rights of union members to sue under federal law. The issue most frequently affects the right of union members to bring claims under Title VII for discrimination on the basis of race, gender, religion and national origin. However, it could also affect claims under federal whistleblower laws. The issue had long been settled that when Congress creates individual rights, then workers could not lose those rights merely because they belong to a union that can pursue grievances through arbitration. The Supreme Court settled this issue in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). In 2009, however, the Supreme Court unsettled this issue with its decision in 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009).

Continue Reading 10th Circuit allows union members to sue after union loses arbitration

The Sixth Circuit Court of Appeals in Cincinnati has issued a remarkable non-published decision reinstating retaliation claims by Alan and Kimberly Alonso against Huron Valley Ambulance (HVA) of Ann Arbor, Michigan.  The decision is remarkable no so much for what it holds as for its break from the prevailing judicial trend favoring arbitration. The Court’s precise holding is that the Alonsos did not make a "knowing and intelligent waiver" of their right to go to court when they signed HVA’s form employment agreement incorporating a "grievance review board" that was based on documents HVA did not provide until weeks after the Alonsos started work.

Continue Reading Sixth Circuit finds waivers in employment contract are invalid