Uff. Arbitration.

Occasionally, I get questions about arbitration.  Should we have arbitration agreements?  Why would we not?  Isn’t it cheaper?  Isn’t it quicker?  Isn’t it secret?  In theory, arbitration can be cheaper, quicker, and maybe even secret.  That said, in real life, arbitration isn’t any of these things to the people that matter – the employer, the employee, and every other employee.

Arbitration is private court.  Depending on the rules you select, you have between one and three judges.  Attorneys represent both the employee and the employer.  There is discovery where the parties exchange information and depose witnesses in front of court reporters.  There are motions where attorneys for the parties argue (probably only in writing) over the rules of the hearing or whether the employee has a case at all.  And, finally, there’s a hearing that looks remarkably like a trial but most likely in a hotel conference room rather than a courtroom.  But, unlike court, once an arbitration is completed, there may be no right to appeal for both parties.  Each could be stuck with the judgment.

The employee and the employer must agree to arbitration.  Employees must sign arbitration agreements (most often at the start of employment) promising only to bring their case before an arbitration panel, not in court.  In most cases, the arbitration agreement is presented at the start of employment and is a condition of employment.  The arbitration agreement may include things like class action waivers (frowned upon by the NLRB, EEOC, and possibly the Supreme Court), confidentiality, and attorney’s fees provisions.

Arbitration is also controversial.  Just this past month, arbitration has been criticized by former FOX News host and Roger Ailes sexual harassment target Gretchen Carlson, U.S. Senator Al Franken, The Atlantic, and Slate.  Ms. Carlson has taken up the flag of eliminating arbitration as her cause, making her an odd partner with Minnesota’s super-blue Senator.  Slate argued that the current sexual harassment nightmare is the result of stripping the right to a day in court away from sexual harassment victims.  When arbitration class action waivers were argued before the Supreme Court just a few weeks ago, the Court appeared split.  While the Court has also allowed (some would argue encouraged) arbitration, the pendulum appears to be swinging.

Employers spend a great deal of time and resources on preparing arbitration agreements and educating employees that they can only seek redress through arbitration due to a piece of paper they signed when they hoped this job would work out.  No one starts a job thinking about how they’re going to sue them later.  So should we be forcing them to make that decision when they are optimistic about their future with you?  Would it be better to spend these resources on making employees feel valued, that they are contributing to the organization, and fixing issues as they crop up?  I would argue it would be better.

Currently, over 250 women and men are in arbitration with Sterling Jewelers over sexual harassment claims throughout Kay and Jared jewelry stores all over the country. The case was originally filed in arbitration in 2009 – over eight years ago.  When this many employees are involved (and many others are witnesses), the attorneys’ fees are this huge, and the time these cases have taken, the reasons for arbitration seem silly.  It has not been quick, cheap, or secret.

Somewhere out there (and probably closer than we think) is a smart, capable plaintiff’s attorney who is gunning for arbitration agreements.  With sexual harassment scandals coming from every direction adding to the calls to end these agreements, it might not be too hard to finally take them down.

Photo by Dmitry Ratushny on Unsplash

Listening to Harassment

In the past week, we’ve learned about Harvey Weinstein.  Much like Roger Ailes, Bill O’Reilly, Bill Cosby, and others, the conduct perpetrated by Mr. Weinstein is horrific and devastating.  Questions like “how did this go on for so long” or “why didn’t the women speak up” are natural, but these miss the fundamental point – this happened.  The conduct was ignored or even facilitated by others for so long.

What if you were HR at the Weinstein Company?  What if a brave woman came to you and explained what had happened?  What would you do?  After listening to many, many stories of sexual harassment, here’s my advice to the HR pro when someone walks into your office with a story of harassment:

  1. Listen. Seriously.  Yes, you’re going to have to take notes, but the first goal is to listen.  Take the time to give the person in your office your undivided attention as she or he gets the story out the way they planned to tell you.  A lot of the person’s brain has been totally consumed with how to tell you.
  2. Give the person space. Telling someone about harassment is hard.  Really, really hard.  Shame and lack of self-confidence are so undermined by harassment that finding the courage to tell you, even if they know you well, takes significant effort.  Let the person get the story out how she or he wants to get it out.  Try not to interrupt.
  3. Have tissues. Yes, it is cliché, but trust me, having a box of tissues nearby never hurt anyone, and often, it is a simple offer of tissues that will provide comfort even though you cannot agree with the person.
  4. Explain your role. After you’ve heard the story the way the person wanted to tell you, explain you will have to start an investigation.  During the investigation, you won’t be able to “take sides,” but you will do your best to gather the necessary facts, listen to people with information, and be as thorough as possible.  Tell the person you may hire an outside investigator.
  5. Go through the facts. Explain that because you need information, you will have to ask a bunch of questions even though it might be painful.  (You can empathize that it is painful.  That’s okay.) Then go through the story again.  Ask questions.  Ask for dates, times, and who else she or he thinks you should talk to.  You won’t be able to keep things 100% confidential because you need to investigate – tell the person this.
  6. Take notes. Once you’ve been through your role, you should start taking notes. Please take thorough notes.  If this gets to litigation or a New Yorker story, your notes are going to be placed in front of you on numerous occasions.  Make sure you understand them and can explain them.
  7. Thank. Please thank the person for bringing this information to you.  Thank them for spending the time to do it and the emotional energy.

These are just tips on how to hear about it.  There are so many other things you will need to do after you’ve listened.  Talking to your manager, taking timely and appropriate action, taking a look at your harassment training, and many other things may be what you will do.

As HR folk, we have obligations – not only to our organizations and the people we work with – we have an obligation to our profession.  The New York Times investigation included assessments of the Weinstein Company HR department as weak and ineffective.   We can change that.  We do good for organizations when we speak up, investigate, and facilitate effective actions that prevent and stop this behavior.  We can do it.

Photo by Zhen Hu on Unsplash