The Scheinman Institute on Conflict Resolution at Cornell University promotes interdisciplinary education, research and training in dispute resolution for students, academics, neutrals and practitioners.
In Cornell's ILR School, the Institute continues its focus on programs dealing with workplace dispute resolution. Through its joint program with the Cornell Law School and relationships with the other Cornell colleges, the Institute addresses commercial, environmental, international, regulatory and other conflicts that arise in the public, private and non-profit sectors as well as in complex litigation where creative conflict resolution can have a meaningful impact.
Articles by Faculty, Staff, Students and Colleagues:
The Expansion and Implications of Various Forms of Collective Representation in the United States
Harry Katz, Cornell University
(The following article is an excerpt from Professor Katz’s farewell address as President of the Labor Employment Relations Association)
I have been a student of collective bargaining my entire career as much of my scholarship and teaching has focused on understanding why and how U.S. collective bargaining evolved over the post- World War II period. What I am now struck by is the fact that various new organizations are being used by employees to pursue group action do as to improve those employees’ terms and conditions of work. Let me first describe how I came to see this emerging trend as the origins of my thinking leads me to a related point about this development, namely, that the U.S. labor relations system is becoming increasingly similar to the labor relations systems that exist in emerging countries.
The Growing Use of Mandatory Arbitration:
Access to the Courts is Now Barred for More than 60 Million American Workers
Alexander J.S. Colvin, Cornell University
In a trend driven by a series of Supreme Court decisions dating back to 1991, American employers are increasingly requiring their workers to sign mandatory arbitration agreements. Under such agreements, workers whose rights are violated—for example, through employment discrimination or sexual harassment—can’t pursue their claims in court but must submit to arbitration procedures that research shows overwhelmingly favor employers.
In reviewing the existing literature on the extent of this practice, I found that the share of workers subject to mandatory arbitration had clearly increased in the decade following the initial 1991 court decision: by the early 2000s, the share of workers subject to mandatory arbitration had risen from just over 2 percent (in 1992) to almost a quarter of the workforce. However, more recent data were not available. In order to obtain current data for this study, I conducted a nationally representative survey of nonunion private-sector employers regarding their use of mandatory employment arbitration.
This study finds that since the early 2000s, the share of workers subject to mandatory arbitration has more than doubled. More than half—53.9 percent—of nonunion private-sector employers have mandatory arbitration procedures. Among companies with 1,000 or more employees, 65.1 percent have mandatory arbitration procedures. Among private-sector nonunion employees, 56.2 percent are subject to mandatory employment arbitration procedures. Extrapolating to the overall workforce, this means that 60.1 million American workers no longer have access to the courts to protect their legal employment rights and instead must go to arbitration.
Mandatory arbitration is more commonly imposed on women, African Americans, and low-wage workers. Among the states, mandatory arbitration is especially widespread in California, Texas, and North Carolina, but in all of the 12 largest states by population over 40 percent of employers have mandatory arbitration policies.
Of the employers who require mandatory arbitration, 30.1 percent also include class action waivers in their procedures—meaning that in addition to losing their right to file a lawsuit on their own behalf, employees also lose the right to address widespread rights violations through collective legal action. Under the Supreme Court’s recent Epic Systems ruling, these class action waivers are enforceable. Large employers are more likely than small employers to include class action waivers, so the share of employees affected is significantly higher than the share of employers engaging in this practice: of employees subject to mandatory arbitration, 41.1 percent have also waived their right to be part of a class action claim. Overall, this means that 23.1 percent of private-sector nonunion employees, or 24.7 million American workers, no longer have the right to bring a class action claim if their employment rights have been violated.
Individual Employment Rights Arbitration in the U.S.: Actors and Outcomes
This study examines disposition statistics from employment arbitration cases administered over an eleven-year period by the American Arbitration Association (AAA) to investigate the process of dispute resolution in this new institution of employment relations. We investigate the predictors of settlement before the arbitration hearing and then estimate models for the likelihood of employee wins and damage amounts for the 2,802 cases that resulted in an award. We find that larger employers who are involved in more arbitration cases tend to have higher win rates and have lower damage awards made against them. This study also provides evidence of a significant repeat employer-arbitrator pair effect; employers that use the same arbitrator on multiple occasions win more often and have lower damages awarded against them relative to employers appearing before an arbitrator for the first time. We find that self-represented employees tend to settle cases less often, win cases that proceed to a hearing less often and receive lower damage awards. We also find that female arbitrators and experienced professional labor arbitrators render awards in favor of employees less often than do male arbitrators and other arbitrators.
Superbugs versus Outsourced Cleaners: Employment Arrangements and the spread of Health Care-Associated Infections
On any given day, about one in 25 hospital patients in the United States has a health care–associated infection (HAI) that the patient contracts as a direct result of his or her treatment. Fortunately, the spread of most HAIs can be halted through proper disinfection of surfaces and equipment. Consequently, cleaners—“environmental services” (EVS) in hospital parlance—must take on the important task of defending hospital patients (as well as staff and the broader community) from the spread of HAIs. Despite the importance of this task, hospitals frequently outsource this function, increasing the likelihood that these workers are under-rewarded, undertrained, and detached from the organization and the rest of the care team. As a result, the outsourcing of EVS workers could have the unintended consequence of increasing the incidence of HAIs. Examining acute care hospitals in California, this paper documents the negative healthcare consequences associated with the outsourcing of hospital cleaners. In doing so, the paper provides important evidence about the link between employment models and patient care quality.