Beyond the Protocol: Recent Trends in Employment Arbitration

Abstract:     
The Employment Due Process Protocol, drafted in 1995, set minimum procedural safeguards for inclusion in all employment arbitration agreements. However, the Protocol no longer provides the degree of prospective guidance that it once did, because courts now are faced with issues the Protocol's drafters never anticipated. While the Protocol was originally intended as a guidepost for employers rather than the judiciary, it has commendably functioned in both roles. Permitting the Protocol to fade into obsolescence would be a considerable loss.

This article describes recent case law developments (focusing on cases decided in 2006 and early 2007) on several critical issues that either the Protocol did not address or that might profitably be reconsidered. These issues are grouped into five categories: contract-formation issues, barriers to access, process issues, remedies issues, and judicial review. The article then argues that the Employment Protocol should be updated in some form to provide prospective guidance to employers, courts, and arbitrators on a set of baseline rules designed to ensure arbitral fairness. This could be accomplished by amending the Protocol, drafting a successor to the Protocol, persuading the major arbitral service providers (perhaps in combination with the National Academy of Arbitrators) to adopt a joint Statement of Principles, or by drafting an Arbitral Bill of Rights to be presented to Congress.

This article was written for the conference Beyond the Protocol: The Future of Due Process in Workplace Dispute Resolution, sponsored by the National Academy of Arbitrators, and hosted by the Institute for Law and the Workplace, Chicago-Kent College of Law.

Keywords: arbitration, employment, protocol, due process, dispute resolution

Accepted Paper Series