(The Return of) Ignatz, by Sam Heldman

Wednesday, August 14, 2002

Arbitration and the DOL Michael Fox, a blogger who represents employers, has noted that Solicitor Scalia (son of you-know-who) at the DOL has issued a directive that the DOL will not bring suit on behalf of some employees whose rights have been violated, under laws enforceable by the DOL, when the employees are covered by arbitration agreements with their employer. As Fox notes, the Supreme Court held (in a case raising similar issues with the EEOC) that the government doesn't have to defer to arbitration in such cases; but now the DOL will do so anyway. I'm trying to find the directive itself online.

UPDATE: Here is the directive, as a pdf file.

UPDATE UPDATE: Having read the directive -- and here I know that some lawyers who are generally on "my side" on various things might disagree with me -- I don't think it's so bad. What I was most concerned about, was whether the DOL would recognize the importance of fairness in the arbitration agreement itself -- allowing the arbitrator to issue all available remedies, allowing class-wide arbitration, allowing discovery, etc. The directive (while not as strong as I would have written it in this regard) does recognize all of these things as relevant to the DOL's decision whether to defer. And the directive also points out various other reasons why deferral to arbitration won't be appropriate in some cases.

Now I know that "trial lawyer" folks tend to think of arbitration as horrible -- but to at least some of us who come to the table as union lawyers, arbitration isn't a bad word. So long as it's not just a way by which the defendant tries to limit the relief available, or to make litigation more costly to the employee/consumer, whether arbitration is good or bad really just depends on who the arbitrator is; and compared to the random draw in many U.S. District Courts, I'd be happy with a panel from the AAA or FMCS in some disputes.

posted by sam 2:17 PM 0 comments


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