Congress Was Wrong: Arbitration Is More Plaintiff-Friendly Than Litigation, and We Can Make It Even More Just
Harry C. Katz, David Sherwyn & Paul Wagner
In March of 2022, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA)—a law that made pre-dispute arbitration agreements unenforceable, regardless of whether the agreements were entered into voluntarily by the employee or were a mandatory condition of employment.
In their new research paper, published in the American Bar Association Journal of Labor and Employment Law, Harry C. Katz, Jack Sheinkman Professor of Collective Bargaining and the Director of the Scheinman Institute on Conflict Resolution at Cornell University’s School of Industrial and Labor Relations, David Sherwyn, John and Melissa Ceriale Professor of Hospitality Human Resources & Law, and the Director of Cornell Center for Innovative Hospitality Labor and Employment Relations at Cornell University’s Nolan School of Hotel Administration / JCB College of Business, and Paul Wagner, a shareholder at Stokes Wagner and an Adjunct Professor at Cornell University’s Nolan School of Hotel Administration / JCB College of Business, find that employees involved in workplace disputes gain significantly better (faster and more wins) in employment arbitration than in litigation and they suggest how employment arbitration can be made even more fair via the inclusion of due process protections.
Having studied Alternative Dispute Resolution (ADR) for more than a quarter century, the authors believe that ADR is something that all employees and employers seeking a positive employment culture should favor, and that society should not only allow but should encourage. They think that in order to create a system that is efficient, fair, and positive for employees, employers, and society, Congress must pass a statue incorporating the best of ADR polices and correcting a number of flaws currently allowed by law.