BIA REPORT
Employment Law Update
State and federal developments of interest to New Hampshire employers
April 2002 issue:
By Andrea Johnstone, Anne Scheer, and Terry Shumaker*
U.S. District Court Strongly Endorses Arbitration of Employment Claims
In a decision of great significance to New Hampshire companies, our United States District Court has reinforced a series of recent U.S. Supreme Court rulings upholding mandatory arbitration in non-union workplaces. Employers who have been waiting to institute arbitration programs to resolve cases quickly without a jury trial now have confirmation from our federal court that the "strengthening federal policy favoring arbitration" will be enforced in this jurisdiction.
The case involved a salesman who had signed an employment agreement providing that any dispute regarding termination of his employment would be "submitted to binding arbitration in accordance with the rules of the American Arbitration Association." (In other recent cases arbitration clauses contained in job applications or employee handbooks were upheld). After being fired, the salesman filed an age discrimination suit in federal court. The case was headed for a jury trial when the employer convinced the Court to order arbitration.
The Court's decision rejected all of the employee's objections to having to arbitrate. The Court asserted it would be inequitable to allow the employee to pursue litigation "in clear violation of the arbitration agreement he made." Equally unsuccessful were the employee's efforts to avoid arbitration because he claimed he did not know he was waiving his right to a jury trial and foregoing rights under the Age Discrimination in Employment Act.
The most significant aspect of the Court's analysis for the future of employment arbitration in this state was its rejection of the argument that the agreement should be voided because of potential cost to the employee. The Court noted that the arbitrator was empowered to allocate costs between the parties and that the employee was obviously willing to incur a filing fee and legal expenses litigating the matter and had failed to show that he would incur greater costs in arbitration.
There can now be no question that employment arbitration has strong judicial support and is here to stay. Employers interested in a faster, less expensive way to resolve workplace suits without a jury trial should take a serious look at implementing an arbitration program for some or all of their workforce. To make sure your process can withstand a challenge, counsel should be consulted, but administration of your procedures can, and probably should be, outsourced to expert agencies like American Arbitration.
In Brief
Union bulletin boards
Applying long-standing principles governing union insignia and company bulletin boards, the NLRB found that a hospital violated a nurse's rights when it disciplined her for displaying a pro-union screen saver message on her computer. Since the hospital allowed other nurses to have non-work related messages on their screens, the Board reasoned that its bulletin board rules applied and that the hospital had unlawfully discriminated.
Sexual harrassment poll
A recent poll released in February found that nationally 21 percent of women and 7 percent of men reported being sexually harassed at work. The poll was commissioned by an international group of labor and employment lawyers. It also reported that 20 percent of those responding knew of an affair between a supervisor and subordinate at work and that a larger percentage believed that such relationships caused favoritism and poor morale.
Weingarten right
The D.C. Circuit Court of Appeals has upheld the NLRB's extension of "Weingarten" rights to non-union employees entitling them to have a co-worker accompany them to employer conducted investigatory interviews which could result in disciplinary action. It remains to be seen whether President Bush's appointees to the NLRB will reverse the Clinton Board's new rule or allow it to remain in effect. Stay tuned.
Copyright 2002. This article originally appeared in BIA Update, April 2002.
* Anne Scheer is admitted in New Hampshire.
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