The Forum for Adjudication of Employment Disputes
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Description
This chapter focuses on the appropriate design of the forum for adjudication of employment disputes. By the term “adjudication,” we refer to the resolution of “rights” disputes—disputes over the application of a contract or the application of a statutory or regulatory rule or policy to a particular situation. We are not referring to “interests” disputes—disputes over the substantive content of an initial labor-management contract or renewal agreement, or the analog in a non-unionized setting, such as the construction of rules to govern the workplace. In considering the design question, we assume that all involved actors (employees, employers, unions, etc.) retain whatever endowments they currently possess in terms of intelligence, energy, income, occupational status, access to resources, union representation, and statutory and contractual rights. Holding these endowments constant, we ask what institutional arrangements for adjudicating rights disputes would do the best job of resolving those disputes in a fair, efficient manner for workers, managers and the public generally. The fundamental problem of the current system is that the overwhelming majority of U.S. workers lack access to a fair, efficient forum for adjudicating their disputes with their employers. They have, in a theoretical sense, a right of access to a court system that is, properly viewed as, the envy of the world, but the costs of access to the system—not so much filing fees, but access to competent counsel—are prohibitive (Estreicher, 2005). Workers with viable claims are often left with the unpalatable choice of either filing a complaint with an administrative agency poorly resourced to handle a large volume of claims, representing themselves in court, or simply giving up. Class actions, an ingenious, lawyer-driven device of the equity courts that has done much good, are also poorly designed for fact-intensive, day-to-day disputes of employees who complain of an improper termination of employment or other adverse personnel decision. No other country in the developed world relies on ordinary civil courts for employment disputes; rather, they use some form of employment tribunal with limited rights of appeal to the courts (Estreicher, 2008).
Source Publication
Research Handbook on the Economics of Labor and Employment Law
Source Editors/Authors
Cynthia L. Estlund, Michael L. Wachter
Publication Date
2012
Recommended Citation
Estreicher, Samuel and Eigen, Zev J., "The Forum for Adjudication of Employment Disputes" (2012). Faculty Chapters. 453.
https://gretchen.law.nyu.edu/fac-chapt/453
