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Alternative Dispute Resolution in the Work Place

Henry S. Kramer

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Alternative Dispute Resolution in the Work Place is essential for anyone responsible for the management of legal risk in the work place. Whether you need information on the latest cases and alternative dispute resolution (ADR) programs or guidance on how ADR can affect your company's or clients' interests, you will want to have this book close at hand. It explains the pros and cons of relying on ADR, the complex legal and practical issues involved in creating an ADR program, the forms of ADR currently in use, the latest developments in the law, and the practical tips, tricks and traps employment professionals need to know about. Coverage includes: the intricacies of mediation, arbitration and other techniques; industry-specific ADR; how to decide whether ADR is the right approach for your organization or client; what employers can and can't do in an ADR program; and when a court may overturn the results of an ADR proceeding.

This easy-to-use deskbook also includes useful suggestions and sample clauses to aid in the design of an ADR program, with examples of different approaches.

Book #00644; looseleaf, one volume, 908 pages; published in 1998, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-081-4

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 908
  • ISBN: 978-1-58852-081-4
  • Pub#/SKU#: 644
  • Volume(s): 1

Author Image
  • Henry S. Kramer
Henry S. Kramer is an Attorney-Consultant at ConsultKramer of Ithaca, New York. ConsultKramers training, consulting, and legal client list includes a wide range of Fortune 1000 organizations. Mr. Kramer is also a Visiting Fellow at Cornell Universitys New York State School of Industrial and Labor Relations, where he has taught collective bargaining and labor law. He has been involved in the practice of human resources and labor law throughout his managerial career, including serving as Cornell Universitys Director of Employee Relations, and as Corporate Manager of Labor Relations and Legal Services and as Human Resources In-house Counsel for BASF Wyandotte. Mr. Kramer has frequently served as Chief Spokesman in labor contract negotiations.

Also by Henry S. Kramer:
Game, Set, Match: Winning the Negotiations Game
Sex Discrimination and Sexual Harassment in the Work Place

CHAPTER 1
Background And ADR Legal Development

§ 1.01 Scope of the Treatise
§ 1.02 Historical Background
[1] From Antiquity Through the Middle Ages
[2] Colonial America and the Early United States
[3] The Development of ADR in England
[4] ADR in the U.S. Until 1920
[5] ADR From 1920 Through the New Deal
[6] The New Deal to the Steelworkers Trilogy of 1960
[7] Commercial and Labor Arbitration 1960 to 1989
[8] The Birth of Employment ADR, The Gilmer Case (1991)
[9] 1991 to the Present, Gilmer’s Progeny
[10] Emerging Issues
§ 1.03 Tips, Tricks, and Traps

CHAPTER 2
Federal Statutes Related To Employment ADR

§ 2.01 Introduction to Employment Related Federal Statutes and ADR
§ 2.02 The Federal Arbitration Act
§ 2.03 Civil Rights Acts
§ 2.04 The Railway Labor Act as a Mandatory Alternate Dispute Resolution Statute
§ 2.05 The National Labor Relations Act and the Federal Mediation Service
§ 2.06 Employee Retirement Income Security Act and Alternate Dispute Resolution
§ 2.07 The Fair Labor Standards Act, Including the Equal Pay Act
§ 2.08 Age Discrimination in Employment Act and Embedded OWBPA
§ 2.09 Americans With Disabilities Act
§ 2.10 Congressional and Executive Branch Accountability Acts
§ 2.11 Indian Gaming Regulatory Act
§ 2.12 Department of Defense Appropriations Act, 2010

CHAPTER 3
State Statutes Related To Employment ADR

§ 3.01 Introduction to Employment Related State Statutes and ADR
§ 3.02 State Law Preemption by the Federal Arbitration Act and Choice of Law
[1] Background
[2] “Commerce” and the FAA as Substantive Law Binding on the States
[3] Choice of Law Provisions in Arbitration Contracts
§ 3.03 Table of State Alternate Dispute Resolution Statutes
§ 3.04 The Uniform Arbitration Act
§ 3.05 State Statutes of Selected States Related to ADR
[1] Alabama
[2] Alaska
[3] Arizona
[4] Arkansas
[5] California
[6] Colorado
[7] Connecticut
[8] Delaware
[9] District of Columbia
[10] Florida
[11] Georgia
[12] Hawaii
[13] Idaho
[14] Illinois
[15] Indiana
[16] Iowa
[17] Kansas
[18] Kentucky
[19] Louisiana
[20] Maine
[21] Maryland
[22] Massachusetts
[23] Michigan
[24] Minnesota
[25] Missouri
[26] Nebraska
[27] New Hampshire
[28] New Jersey
[29] New York
[30] North Carolina
[31] Ohio
[32] Oregon
[33] Pennsylvania
[34] Texas
[35] Virginia
[36] Washington
[37] Wisconsin

CHAPTER 4
PRIVATE ADR SYSTEMS

§ 4.01 Introduction to Private ADR Systems
§ 4.02 Mediation
[1] The Mediation Process
[2] Mediation and the Unauthorized Practice of Law
§ 4.03 Arbitration
§ 4.04 Ombuds
§ 4.05 Private Judging and Fact Finding
§ 4.06 Mini-trials
§ 4.07 Tips, Tricks, and Traps

CHAPTER 5
Court Annexed Alternate Dispute Resolution

§ 5.01 Introduction to Court Annexed ADR
[1] Definitions of Specific Court Annexed ADR Procedures
[2] The Multi-Door Courthouse Concept
§ 5.02 Sources of Authority and Forms of Court Annexed ADR
[1] Sources of Authority to Utilize Court Annexed ADR
[2] Forms of Court Annexed ADR
§ 5.03  Constitutional and Legal Issues in Court Annexed ADR
[1] State Action
[2] Confidentiality of Court Annexed ADR
[3] Immunity for ADR Neutrals
§ 5.04 Impact of Court Annexed ADR on Legal Strategies and Tactics
[1] ADR in Relation to Litigation
[2] Duty to Advise Clients of ADR
[3] ADR Impacts on Discovery and Delay
§ 5.05 State Court Annexed ADR Programs
[1] Florida
[2] Illinois
[3] Louisiana
[4] New York
§ 5.06 ADR Ethics
§ 5.07 Agency ADR
§ 5.08 Tips, Tricks, and Traps

CHAPTER 6
ADR in the Securities Industry

§ 6.01 Background of ADR in the Securities Industry
[1] Early History of Arbitration in the Securities Industry
[2] Self-Regulatory Organizations
[3] The Security Industry Arbitration Scheme
[4] Securities Industry Mediation and Conciliation
[5] Arbitration in the Securities Industry Prior to Gilmer
§ 6.02 Securities Industry Arbitration and the Gilmer Case
§ 6.03 Securities Industry Arbitration System and Union Represented Employees
§ 6.04 Securities Industry Arbitration Under the 1993 Code
§ 6.05 “Knowing Consent” to Securities Industry Arbitration
§ 6.06 Timeliness of Securities Industry Arbitration
[1] Time Limitations in Securities Industry Codes
[2] The Supreme Court and Securities Industry Time Limits
[3] Consequences of Who Decides Timeliness
§ 6.07 Ethics and Securities Industry Arbitration
§ 6.08 Tips, Tricks, and Traps

CHAPTER 7
ADR in Relation to Collectively Bargained Agreements

§ 7.01 Introduction to Alternate Dispute Resolution and Labor Relations
§ 7.02 Applicable Federal and State Statutes
§ 7.03 The Federal Arbitration Act and Collective Bargaining Agreements
§ 7.04 Compulsory Arbitration Pursuant to Collective Agreements
[1] Legal Context
[2] Private Sector Employees Subject to the NLRA
[3] Retiree Exclusion and Coverage
[4] Private Sector Employees Subject to the Railway Labor Act
§ 7.05 Tips, Tricks, and Traps

CHAPTER 8
Arbitrability

§ 8.01 The Problem of Arbitrability
§ 8.02 The Role of Statutes, Courts and Parties in Arbitrability
[1] Applicable Statutes
[2] The Courts’ and the Parties’ Roles in Arbitrability
[3] Arbitrability Objection Timing
[4] Consolidated Arbitrations
[5] Class Action Arbitrations
[6] Jury Waivers on “Fallback” from Arbitration
§ 8.03 Arbitrability in the Labor Relations Context
[1] Arbitrability Under the National Labor Relations Act
[2] Arbitrability Under the Railway Labor Act
§ 8.04 Tips, Tricks, and Traps

CHAPTER 9
Entering ADR, Waiver, And “At Will” Employment

§ 9.01 Entering ADR
[1] Agreements to Enter ADR and to Determine Its Scope
[2] Limiting and Controlling Arbitral Power
[3] Voluntary Mediation Through the EEOC
[4] Handbook and Employment Application ADR
§ 9.02 Knowing and Voluntary Waiver
§ 9.03 Impact of ADR Agreements on “Employment at Will”
[1] Definition and Application of Employment at Will
[2] ADR and Employment at Will, An Oxymoron
§ 9.04 Tips, Tricks, and Traps

CHAPTER 10
The ADR Process

§ 10.01 Selection and Payment of Neutrals
[1] Selection
[2] Payment
[3] Arbitration Rules and Gaps and Omissions in Arbitration Agreements
[4] Arbitral Immunity
§ 10.02 Discovery, Evidence, and Procedure
[1] Discovery
[2] Evidence, Electronic Discovery and Ethics
[3] Procedure
[4] Expert Evidence and Fact Finding
[5] Time Limits
§ 10.03 Retained Jurisdiction
§ 10.04 Remedies and Punitive Damages
§ 10.05 Attorney’s Fees in ADR
§ 10.06 Grounds for Appeal of Employment Arbitration Decisions
[1] Ethical and Legal Grounds for Vacating Arbitration Awards Based on Nondisclosure
[2] Statutory Bases to Set Aside Arbitration Awards
[3] Non-Statutory Bases to Set Aside Arbitration Awards
[4] Right of Parties to Modify Grounds to Set Aside Awards
[5] Appeals and Back Pay Risk
§10.07 Tips, Tricks, and Traps

CHAPTER 11
Human Resources Considerations

§ 11.01 Introduction
§ 11.02 Speed vs. Appeal Rights
§ 11.03 Costs
§ 11.04 Alternate Dispute Resolution Charter
[1] Which Employees Are Covered
[2] Whether Coverage Is Voluntary or a Condition of Employment
[3] Outside Governing Rules
[4] The Employer’s Right to Amend Unilaterally for Future Application
[5] When Coverage Begins
[6] The Impact of the Procedure on At Will Employment
[7] Issues Covered, Including Whether Statutory Issues are Embraced
[8] When Complaints May be Filed
[9] Time Limits for Each Required Action
[10] Class Actions
[11] Allowable Representatives
[12] Procedures for Qualifying and Selecting a Neutral
[13] Discovery, Deposition, and Privacy Issues
[14] How Coverage/Arbitrability Disputes Will be Resolved
[15] Rules of Evidence
[16] Limits on the Neutral’s Authority
[17] How the Neutral Will Be Paid and Other Costs Distributed
[18] Remedies Permitted
[19] Appeal Rights
[20] Last Chance Agreements Waiving Arbitration
[21] Non-Attorney Human Resources Advocates in Arbitration

APPENDICES
INDEX