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Shifting the Paradigm of the Debate: A Proposal to Eliminate At-Will Employment and Implement a 'Mandatory Arbitration Act'


Zev J. Eigen


Northwestern University School of Law

Nicholas Menillo


Cornell University - Law School

David Sherwyn


Cornell University

February 13, 2011

Indiana Law Journal, Forthcoming
Northwestern Law & Econ Research Paper No. 11-04
Northwestern Public Law Research Paper No. 11-37

Abstract:     
This article recasts the debate over mandatory arbitration of employment disputes as a discussion of the need to overhaul some critical elements of the way in which workplace rights disputes are adjudicated. Efforts to overhaul the system such as the Arbitration Fairness Act perpetuate the status quo of unjust cost-driven exploitation by law-breaking employers and employees alike. The authors provide an alternative two-part solution. First, we propose a "Mandatory Arbitration Act" that attempts to remedy legitimate problems like forum privacy that increase bad employers' abilities to hide from the law, while retaining significant benefits of pre-dispute arbitration like flexibility, speed, and reduced costs which augment access to justice for low wage earners. Second, we propose that employees engaged in interstate commerce can be terminated only if there is cause for the termination or severance pay given in lieu thereof. The article outlines a new employment standard that will provide employees with protection, allow employers to operate with greater certainty, and restore creditability and accountability to discrimination law.

Number of Pages in PDF File: 28

Keywords: mandatory arbitration, arbitration, employment, labor, pre-dispute, resolution, ADR, mediation, negotiation, negotiations, at-will, at will, termination, just cause, Title VII

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Date posted: February 14, 2011 ; Last revised: March 10, 2011

Suggested Citation

Eigen, Zev J. and Menillo, Nicholas and Sherwyn, David, Shifting the Paradigm of the Debate: A Proposal to Eliminate At-Will Employment and Implement a 'Mandatory Arbitration Act' (February 13, 2011). Indiana Law Journal, Forthcoming; Northwestern Law & Econ Research Paper No. 11-04; Northwestern Public Law Research Paper No. 11-37. Available at SSRN: http://ssrn.com/abstract=1761110

Contact Information

Zev J. Eigen (Contact Author)
Northwestern University School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States

Nicholas Menillo
Cornell University - Law School ( email )
524 College Ave
Myron Taylor Hall
Ithaca, NY 14853
United States
David Sherwyn
Cornell University ( email )
School of Hotel Administration
Ithaca, NY 14853
United States
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