Arbitration of Employment Claims
Cincinnati Bar Association
June 3, 2014
Kelly Schoening, Esq.
513-357-5284
Dressman Benzi...
What can you arbitrate?
 Employment law issues, including but not
limited to:
 Harassment
 Discrimination
 Wage and ho...
What cannot be arbitrated?
 Worker’s compensation
 Unemployment benefits
 Employee pension or welfare plans
 Claims no...
What is the benefit of arbitration?
 No jury
 No court
 Nothing in public
 Try the case to a person selected by both p...
What is the benefit of arbitration?
 Arbitrators have experience, unlike jurors
 Unlikely to get outrageous awards
 Sch...
What is the downside of arbitration?
 Cost of arbitrator can be expensive
 Administrative fees are expensive
 Arbitrato...
What is the downside of arbitration?
 Discovery can be greater
 Absence of Rules of Evidence
 More likely to split baby
How do you arbitrate?
 Requires a valid and enforceable contract
 Supreme Court recently affirmed a decision allowing
an...
Enforceable Arbitration Agreement
 Carefully drafted to be enforceable
 Employee must knowingly and voluntarily
consent
...
Tips for Arbitration Agreement
 Clear language
 Arbitrator should be authorized to rule on
summary judgments
 Decide be...
Tips for Arbitration Agreements
 What remedies are available: equitable relief,
attorney fees, punitive fees, compensator...
Tips for Arbitration Agreements
 Procedure for how to notify company of request to
arbitrate
 File a written request to ...
Non-compete
 May not want to arbitrate non-compete issues
 Courts give quick relief and hold quick hearings on these
mat...
Agreement as way to avoid jury
 Can use arbitration to avoid jury
 Negotiate with opposing side to waive arbitration
if ...
Case examples
 Oxford Health Plans v. Sutter, 133 S. Ct. 2064
Supreme Court 2013
 Plaintiff brought class action allegin...
Case examples
 AT& T Mobility v. Concepcion, 131 S. Ct. 1740
(2011)
 FAA trumped state law
 State law cannot nullify bi...
Case examples
 Hergenreder v. Bickford Senior Living Group,
665 F.3d 411 (6th. Cir. 2011)
 Employee signed arbitration a...
Case examples
 Quillion v. Tenant Healthcare Phila., Inc., 673
F.3d 221 (3rd Cir. 2012)
 Employee twice signed document
...
Case Examples
 Ibarra v. UPS, 695 F3d 354 (5th Cir. 2012)
 Employee filed a grievance over termination
 Grievance faile...
Case Examples
 Rogone v. Atlantic Video, 595 F.3d 1131 (2nd
Cir. 2010)
 Agreement had reduced statute of limitations
and...
Thank you!
417917.1
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Arbitration of Employment Claims: The Basics

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Employment attorney Kelly Schoening of DBL Law provides basic background on the arbitration of employment claims. This slide show gives employers useful information on the pros, cons, ins and outs of the arbitration process.

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Arbitration of Employment Claims: The Basics

  1. 1. Arbitration of Employment Claims Cincinnati Bar Association June 3, 2014 Kelly Schoening, Esq. 513-357-5284 Dressman Benzinger LaVelle psc kschoening@dbllaw.com
  2. 2. What can you arbitrate?  Employment law issues, including but not limited to:  Harassment  Discrimination  Wage and hour  Most any type of employment claim  Class action lawsuits-this can be a huge benefit and cost savings
  3. 3. What cannot be arbitrated?  Worker’s compensation  Unemployment benefits  Employee pension or welfare plans  Claims not included in the agreement
  4. 4. What is the benefit of arbitration?  No jury  No court  Nothing in public  Try the case to a person selected by both parties  Less time to settle dispute  Final and binding-no appeals  Save on legal fees
  5. 5. What is the benefit of arbitration?  Arbitrators have experience, unlike jurors  Unlikely to get outrageous awards  Schedule based on party’s availability  Perceived as more employer friendly
  6. 6. What is the downside of arbitration?  Cost of arbitrator can be expensive  Administrative fees are expensive  Arbitrators can be less likely to dismiss case on motion.  It can be a final decision
  7. 7. What is the downside of arbitration?  Discovery can be greater  Absence of Rules of Evidence  More likely to split baby
  8. 8. How do you arbitrate?  Requires a valid and enforceable contract  Supreme Court recently affirmed a decision allowing an employer to use a mandatory arbitration agreement  Federal Arbitration Act strongly favors arbitration of claims  Federal Law preempts State law
  9. 9. Enforceable Arbitration Agreement  Carefully drafted to be enforceable  Employee must knowingly and voluntarily consent  It can be a condition of employment-employee has choice not to take the job  It should be a separate document-stand alone  Do not embed terms in employment application or handbook
  10. 10. Tips for Arbitration Agreement  Clear language  Arbitrator should be authorized to rule on summary judgments  Decide between one or three arbitrators-three is more costly  Discuss how to choose arbitrators  Choice of law clause
  11. 11. Tips for Arbitration Agreements  What remedies are available: equitable relief, attorney fees, punitive fees, compensatory damages, pre-award interest, damages  Confidentiality-protection of trade secrets  Arbitrate all claims  Statute of limitations  At-will employment not amended  Be compliant with FAA
  12. 12. Tips for Arbitration Agreements  Procedure for how to notify company of request to arbitrate  File a written request to arbitrate  Who will administer? (AAA, AHLA, CBA, etc.)  Consider having mandatory mediation prior to arbitration  Agreement should be fair to employee (fees, etc)  Agreement to arbitrate survives termination of employment
  13. 13. Non-compete  May not want to arbitrate non-compete issues  Courts give quick relief and hold quick hearings on these matters  Makes more sense to litigate non-compete/equity type issues
  14. 14. Agreement as way to avoid jury  Can use arbitration to avoid jury  Negotiate with opposing side to waive arbitration if they waive jury trial  It may make sense to try some cases to bench rather than arbitrate  Cost can be a factor
  15. 15. Case examples  Oxford Health Plans v. Sutter, 133 S. Ct. 2064 Supreme Court 2013  Plaintiff brought class action alleging delay and underpayment  Court ruled that claims must be arbitrated due to an agreement  Class actions must be specifically addressed in agreement
  16. 16. Case examples  AT& T Mobility v. Concepcion, 131 S. Ct. 1740 (2011)  FAA trumped state law  State law cannot nullify binding arbitration for class action claims
  17. 17. Case examples  Hergenreder v. Bickford Senior Living Group, 665 F.3d 411 (6th. Cir. 2011)  Employee signed arbitration agreement  Agreement was in employee handbook  Not enforceable-not knowing
  18. 18. Case examples  Quillion v. Tenant Healthcare Phila., Inc., 673 F.3d 221 (3rd Cir. 2012)  Employee twice signed document  Received a brochure outlining internal grievance procedure  Agreement was enforceable
  19. 19. Case Examples  Ibarra v. UPS, 695 F3d 354 (5th Cir. 2012)  Employee filed a grievance over termination  Grievance failed  Then employee sued in federal court for sex discrimination  Court ruled that case would proceed  Gender claim not raised in union grievance and not addressed in arbitration agreement
  20. 20. Case Examples  Rogone v. Atlantic Video, 595 F.3d 1131 (2nd Cir. 2010)  Agreement had reduced statute of limitations and fee-shifting  Court required employer to strike provision in order to enforce agreement  Some courts will allow re-writing of agreement
  21. 21. Thank you! 417917.1

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