What's Next for Employers, Post 'Epic Systems'?
In the absence of legislative certainty, and facing suspicion from the #MeToo movement and the “court of public opinion,” this is a unique opportunity for companies to consider utilizing flexible and creative approaches to address these issues in a way that favorably resonates with their stakeholders.
July 24, 2018 at 12:33 PM
8 minute read
On May 21, the U.S. Supreme Court in the Epic Systems v. Lewis case affirmed the ability of companies to use mandatory arbitration clauses in employment agreements that are accompanied by waivers of class processes in litigation and arbitration. So what's next, both for dispute resolution and employers (particularly in the context of the #MeToo movement)?
'Redefining Winning'
This is one of the important messages that my organization, the CPR Institute, imparts to the business community. Dealing with conflict is not a zero-sum game and often the best solutions that preserve relationships are achieved mediating disputes and using other alternative dispute resolution approaches, rather than litigating in court. I suggest that this way of thinking is even more apt to conflicts in the employment context.
The Supreme Court's opinion in Epic Systems was quite clear: Employers who are using mandatory arbitration clauses in their employment agreements may continue along their course and are in no way required to change processes or programs when it comes to dispute resolution in the workplace. They “won”… for now.
But there may be a way for them to win differently, in a bigger and more sustainable way. Let's face it, arbitration is generally viewed today as standing against the #MeToo movement. This certainly does not need to be the case. The Supreme Court decision provides both a practical and valuable employee engagement (and public relations) opportunity for thoughtful employers to revisit, rethink and revitalize their employment practices. In the absence of legislative certainty, and facing suspicion from the #MeToo movement and the “court of public opinion,” this is a unique opportunity for companies to consider utilizing flexible and creative approaches to address these issues in a way that favorably resonates with their stakeholders. This article will suggest some possible paths.
Moving Step by Step … to Success
Whether an employer ultimately arrives at an arbitration approach for workplace disputes, there are a multitude of other issues to address well before the adjudication step becomes an issue. A strong workplace disputes program that is designed to allow employees the ability to address workplace issues fairly, efficiently and informally can garner extensive good will, especially if it provides choices for employees. As described in greater detail in Cutting Edge Advances in Resolving Workplace Disputes, some options to be considered and/or combined when creating an integrated and multi-option conflict management system include:
- Online collaboration tools—online platforms can help solve challenges arising from time, place and cost.
- Open door policies—these can include consultation and counseling.
- Ombud offices or outside mediators—an ombudsman is an individual whose dedicated role within an organization is to interact with and support the conflict management system of all stakeholders.
- Coaching or training programs—employers should aim to develop a team of people who can prevent, spot, diffuse and resolve conflict within their organizations.
- Internal facilitation programs.
- Peer or managerial, nonbinding mediation.
- External mediation or other voluntary approaches.
- A stepped mediation-arbitration combination.
- And, finally, arbitration.
The key to the success of any approach is for the employee to feel heard and protected. Protected from retaliation, of course, but also protected by a program that provides due process (a truly impartial neutral), privacy and gives them a reasonable degree of control over the situation.
The Option of Opting Out
Litigation can be difficult, costly, time-consuming and a drain on everyone involved. Not having to sue to be made whole is a significant employee benefit, part of the company's broader benefits package, which employers can offer to employees through the implementation of such an integrated conflict management program.
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