The AAA administers employment arbitrations pursuant to the due process standards contained in the AAA’s Employment Due Process Protocol and the AAA’s Employment Arbitration Rules. The AAA will accept a case for administration only after the AAA reviews the parties’ arbitration agreement and if the AAA determines that the agreement substantially and materially complies with the due process standards of the Rules and the Employment Due Process Protocol.
Alternative dispute resolution (ADR) procedures are becoming more common in employment contracts, human resources manuals, and employee handbooks. The AAA can help resolve sensitive workplace disputes efficiently and expeditiously.
Disputes can arise out of an employer plan (the employer has drafted a standard arbitration clause for use with all its employees) or an individually-negotiated employment agreement or contract (the employee has had the ability to negotiate the terms and conditions of the employment agreement) or an independent contractor (working or performing as an individual and not incorporated) and a business or organization and the dispute involves work or work-related claims, including any statutory claims.
The AAA has been at the forefront in developing standards of fairness for disputes between employees/individuals and companies. In May 1995, the AAA developed the Employment Due Process Protocol in cooperation with a special task force composed of individuals representing management, labor, employment, civil rights organizations, private administrative agencies, government, and the American Arbitration Association. The goal of the Protocol, in concert with the Employment Arbitration Rules, is to ensure fairness and equity in resolving workplace disputes. The Due Process Protocol encourages mediation and arbitration of statutory disputes, provided there are due process safeguards.
Key Provisions of the Due Process Protocol:
- Employees should have the right to be represented by a spokesperson of their own choosing.
- Employees/Individuals should have access to all information reasonably relevant to their claims.
- Employees/Individuals and Employers have a right to an independent and impartial mediator and/or arbitrator.
- Mediators and/or arbitrators shall have knowledge of the statutory issues at stake in the dispute and familiarity with the workplace and employment environment and shall attend training provided by the government agencies, bar associations, academic institutions, etc.
- No party may have unilateral choice of arbitrator.
- There shall be full disclosure by mediators and/or arbitrators of any potential conflict or appearance of conflict or previous contact between the arbitrator and the parties. The arbitrator shall have no personal or financial interest in the matter.
- Arbitrators should be empowered to grant whatever relief would be available in court under the law.
The AAA maintains an online Consumer and Employment Arbitration Statistics report based on consumer cases filed with the AAA for at least the last five years. This report is made available pursuant to state statutes such as the California Code of Civil Procedure §1281.96 and Maryland Commercial Law §§ 14-3901 to 3905 and updated quarterly, as required by law.
The AAA’s policy on employment ADR is guided by the state of existing law, as well as its obligation to act in an impartial manner. In following the law, and in the interest of providing an appropriate forum for the resolution of employment disputes, the Association administers dispute resolution programs which meet the due process standards as outlined in its Employment Arbitration Rules and Mediation Procedures and the Due Process Protocol. If the Association determines that a dispute resolution program on its face substantially and materially deviates from the minimum due process standards of the Employment Rules and Mediation Procedures and the Due Process Protocol, the Association may decline to administer cases under that program. Other issues will be presented to the arbitrator for determination.
If an employer intends to utilize the dispute resolution services of the Association in an employment ADR plan, it should, at least 30 days prior to the planned effective date of the program: (1) notify the Association of its intention to do so; and (2) provide the Association with a copy of the employment dispute resolution plan. If an employer does not comply with this requirement, the Association reserves the right to decline its administrative services. Copies of all plans should be sent to the American Arbitration Association, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043; Email: firstname.lastname@example.org.
Under the Employment/Workplace Fee Schedule, the employee’s or individual’s fee is capped at $300, unless the clause provides that the employee or individual pay less. The employer or company pays the arbitrator’s compensation unless the employee or individual, post dispute, voluntarily elects to pay a portion of the arbitrator’s compensation. Arbitrator compensation and administrative fees are not subject to reallocation by the arbitrator except upon the arbitrator’s determination that a claim or counterclaim was filed for purposes of harassment or is patently frivolous.
Parties may agree to use mediation—a voluntary, confidential extension of the negotiation process that guides parties toward a mutually agreeable settlement, or they may include mediation in their agreement as a step prior to arbitration.