28 Pages Posted: 14 Feb 2011 Last revised: 10 Mar 2011
Date Written: February 13, 2011
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.
Keywords: mandatory arbitration, arbitration, employment, labor, pre-dispute, resolution, ADR, mediation, negotiation, negotiations, at-will, at will, termination, just cause, Title VII
Suggested Citation: 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: https://ssrn.com/abstract=1761110