For those of you who do not receive the California Labor & Employment Law Review, I am pleased to share my recent article on the topic of evaluating “work out of class” claims, of which I’ve seen a dramatic uptick in the past year and a half. I welcome your thoughts and feedback! Eval_Work_out_of_Class_CLELR_Nov-2021
The National Academy of Arbitrators notified me this weekend that their Board of Governors has accepted my application to the National Academy of Arbitrators. Due to recent travel restrictions, the NAA Conference in Denver was canceled but the board met remotely to consider several items, including my application and those of other candidates. I am honored to be included in the National Academy of Arbitrators.
Now that the National Academy of Arbitrators has created Procedures for conducting hearings via videoconference, I encourage parties consider holding hearings by video conference. Zoom and other platforms allow for breakout rooms (to caucus), privacy, and efficient resolution of your grievances.
I know that this is a novel approach but videoconference hearings are less expensive and more expeditious than in-person hearings. They reduce the hassle to witnesses, who can appear for just their testimony as opposed to waiting at the hearing location. Most court reporting services offer hosting services as well and reporters are trained to participate in video conferences. Please let me know if you are interested in trying this approach. I think these extraordinary times call for novel measures, and I think that videoconference hearings could be a valuable tool for alternative dispute resolution even after the pandemic is resolved.
I will be a faculty member at the Labor Arbitration Institute trainings in San Francisco on September 5 and 6, and in Seattle on October 5. These lively and informative trainings offer CLE and CEU units and plenty of time to meet arbitrators and ask questions. Many folks find the Institute to be great for newer and more experienced practitioners. If you come, please introduce yourself to me as a website visitor! I will be speaking on Sexual Harassment and Past Practice, and opining on many hypotheticals. Please join me!
Last year, I was asked to present on the “new electronic frontiers” in the workplace, and related issues in arbitration. In preparing my presentation, I came across these incredible statistics from the Pew Research Center:
As of November 2016,
- 88% of American adults have internet access
- 69% of American adults use social media
- 86% of 18-29 year olds use social media
- 80% of 30-49 year olds use social media
- 64% of 50-64 year olds use social media
- 68% of American adults use Facebook
- 88% of 18-29 year olds use Facebook
- 65% of adults who make less than $30000/year use Facebook
- 76% of Facebook users use it daily
- Facebook at 191 active monthly users in the United States, and 1.86 billion active monthly users worldwide
These numbers are stunning for a few reasons. First of all, it’s clear that internet and social media usage are as or more pervasive among workers than possibly any other media usage or activity. Other than essentials like eating and sleeping, is there anything this many Americans do in common? Second, this kind of access undermines arguments that workers cannot and do not use technology in a variety ways. It’s clear that the internet isn’t going away, and workers are relying on it more than ever for everything from socializing to banking to managing their own work.
As a result, employers and unions are grappling with the issues that are raised by access to social media and the internet, both in and out of the workplace. Other the next several posts, I want to talk about the variety of these cases and how arbitrators approach them.
The most common issue that arbitrators see in this area are disciplinary matters that hinge on misuse of equipment, the internet, social media and on-duty vs. off-duty conduct. In general, arbitrators apply a variation of the Just Cause Standard to these cases, asking:
- Is there a clear policy on internet, social media, computer or email usage?
- Is the rule articulated reasonable?
- How was the information obtained, and is the employee responsible for it?
- Is there disparate treatment and an appropriate penalty?
Just cause standard in computer misuse cases was described by Arbitrator Jeffrey W. Jacobs, NAA Member, “Computer & Internet Misuse – So, You Mean Once It’s Posted, It’s Really There Forever and I Could Get Fired For It?”, published by The Labor Arbitration Institute.
I’ll talk about each of these in upcoming posts.
In my previous posts, I’ve talked about procedural arbitrability, which is a question about whether an arbitrator can hear a contractual dispute because one party has failed to follow the grievance procedure. In this post, I’ll discuss substantive arbitrability. Substantive arbitrability differs from procedural in that it depends on the question of whether the arbitrator has the authority to decide on the underlying substantive issue. For example, a contract may state that an arbitrator may not hear cases of a certain type. Substantive arbitrability issues can be raised to the arbitrator, but they are also raised after an arbitration decision in court when one party (or both) feels that the arbitrator exceeded their powers under the collective bargaining agreement.
Now let’s talk about substantive arbitrability. These are cases which one party believes the arbitrator doesn’t have jurisdiction over the subject matter. One example of this is Last Chance Agreements (LCA), which is a broader topic, but in general LCAs limit the arbitrator’s jurisdiction to deciding whether the employee violated the terms of the LCA or not. If the employee did, the consequence is spelled out in the LCA and the arbitrator cannot alter the outcome.
Managers frequently assert ‘management rights’ as the basis for why an arbitrator cannot hear a dispute. The actual language of the agreement will be very important here, and will involve a lot of argument. As a practice tip, both sides will need to identify what specific language in the agreement give the arbitrator jurisdiction or not.
Another substantive arbitrability issue arises when a party adds a claim or theory to the original grievance when they get to hearing. Just as an employee has a right to know what they are being fired for, an employer has a right to know what the union believes the contract violation is.
Often there is language in the agreement that limits the arbitrator’s jurisdiction, such as “cannot add to, subtract from or modify the agreement.” If one party believes that the remedy sought by the other side would do that, such as asking an arbitrator to create a new attendance policy, then they should argue this language prevents such a remedy, and ask that if a violation be found, the parties be ordered to fashion their own remedy, for example. In addition, parties sometimes ask arbitrators to act as EEOC administrators, or workers comp judges, or want a legal ruling on a statute. At the end of the day, the arbitrator is there to hear contract disputes, and usually wants to hear only those.
Finally, when should the parties argue the arbitrability issues? As soon as possible, not only in the grievance procedure but in the hearing. Some parties request bifurcation – that is, they want the arbitrator to hear the arbitrability issue before they hear the merits of the case. Unless the parties agree to bifurcate, the arbitrator retains the jurisdiction to rule on bifurcation. Often to an arbitrator, it makes more sense to hear the whole case at once, since the arbitrability issues are often interwoven, but it depends on the facts of the case.
I hope you have found this series useful. Please let me know if you have any questions that I can answer in future posts. You can email me at firstname.lastname@example.org.