Tooters and ADR Discussion

Tooter’s and ADR

Tooters  Restaurant used an alternative dispute resolution program. Employees of  Tooters had to sign an “agreement to arbitrate employment-related  disputes” to be eligible for raises, transfers, and promotions. Under  the agreement, both Tooters and the employee agreed to resolve all  disputes arising out of employment, including “any claim of  discrimination, sexual harassment, retaliation, or wrongful discharge,  whether arising under federal or state law,” through arbitration.

In  a separate policy document not shared with employees until after they  had signed the agreement, Tooters set forth the rules and procedures of  its arbitration program:

The employee had to provide  notice of the specifics of the claim, but Tooters did not need to file  any type of response to these specifics or notify the employee of what  kinds of defenses the company planned to raise.

Only the employee had to provide a list of all facts or witnesses and a brief summary of the facts known to each.

While  the employee and Tooters could each choose an arbitrator from a list,  and the two arbitrators chosen would then select a third to create the  arbitration panel that would hear the dispute, Tooters alone selected  the arbitrators that were put on the list.

Only Tooters had the  right to widen the scope of arbitration to include award any matter,  whereas the employee was limited to the matters raised in his or her  notice.

Only Tooters had the right to record the arbitration.

Only Tooters could cancel the agreement to arbitrate or change the arbitration rules.

Dawn  had worked as a bartender at the Tooters restaurant for about five  years before Tooters adopted its arbitration policy. Dawn was given a  copy of the agreement to arbitrate to review for five days and then  sign. Approximately two years later, a Tooters official grabbed and  slapped her buttocks. After appealing to her manager for help and being  told to “let it go,” she quit her job. When she threatened to file a  lawsuit for sexual harassment, Tooters filed an action in federal  district court to compel arbitration of Dawn’s claims.

Should Dawn be forced to settle her claim through arbitration? Why?

Assume  your company’s arbitration policy was exactly like Tooters’. Name one  aspect would you retain, and which one might you change? Why?

In  October, 2019, California companies can no longer require employees to  sign an agreement forcing harassment, discrimination and wage claims  into arbitration as a condition of employment instead of being able to  sue.

California’s legislation was careful not to conflict with the  Federal Arbitration Act and U.S. Supreme Court case law that allows  companies to enforce mandatory arbitration agreements. The new state law  says it’s illegal to require mandatory arbitration as a condition for  employment, but doesn’t invalidate existing agreements. It also protects  employees from retaliation and allows them to go to the state Labor  Commissioner’s Office.