From: Federal Employment Law Articles
When you fire an employee, there is always the concern that your
termination decision will end up under the microscope of litigation
– the human resources equivalent of Monday-morning
quarterbacking. But instead of having that employment dispute
resolved in a courtroom, you may want to consider adopting an
arbitration policy that substitutes an arbitration hearing for a
courtroom trial.
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Can You Enforce Your Employment Arbitration Agreement?
Many employers prefer the speed, reduced cost and procedural
simplicity promised by arbitrations when resolving disputes with
current or former employees. After briefly encouraging this form of
alternative dispute resolution as an alternative to litigation,
courts have increasingly stepped up their oversight of arbitration
agreements and have begun striking agreements deemed too one-sided
for employers. Accordingly, employers who attempt to mandate
arbitration of employment claims should review their agreements in
light of some recent judicial guidance.
U.S. Supreme Court Tackles Arbitration Case.
On June 21, with Justice Antonin Scalia writing for a 5-4 majority,
the U.S. Supreme Court issued an important decision for employers
that are utilizing or are considering adopting arbitration
agreements. The Court addressed the enforceability of an
arbitration agreement (included as part of an employment contract),
which stated that the arbitrator determines the enforceability of
the contract. According to the majority, because the employee in
this case challenged his employment contract as a whole, rather
than specifically chal-lenging the provision in the agreement
granting the arbitrator the authority to determine enforceability
(the "delegation provision"), the agreement to arbitrate must be
evaluated by the arbitrator, not a court.
U.S. Supreme Court Tackles Arbitration Case.
On June 21, with Justice Antonin Scalia writing for a 5-4 majority,
the U.S. Supreme Court issued an important decision for employers
that are utilizing or are considering adopting arbitration
agreements. The Court addressed the enforceability of an
arbitration agreement (included as part of an employment contract),
which stated that the arbitrator determines the enforceability of
the contract. According to the majority, because the employee in
this case challenged his employment contract as a whole, rather
than specifically chal-lenging the provision in the agreement
granting the arbitrator the authority to determine enforceability
(the "delegation provision"), the agreement to arbitrate must be
evaluated by the arbitrator, not a court.
Supreme Court Bypasses Constitutional Question In Arbitration Ruling.
On December 8, 2009, the U.S. Supreme Court issued a unanimous
decision holding that a panel of the National Railroad Adjustment
Board (NRAB) violated the Railway Labor Act (RLA) when it refused
to hear five grievance cases on the ground that the railroad and
the union had not presented sufficient evidence to show that they
had completed the required "conferencing" before arbitration.
Does Not Renewing A Teacher's Contract Risk An Employment Lawsuit?
Before deciding to terminate a teacher's employment contract, a
school is likely to take several steps. The school's administrator
will carefully review the contract to ensure that the school
complies with any provision that requires "good cause" for
termination. The human resources director will scrutinize the
articulated reason for termination in order to confirm that the
decision does not appear to be based on unlawful discrimination or
retaliation. The Head of School may even consult with legal counsel
about the termination decision.
