Jottings By An Employer's Lawyer

Wednesday, August 14, 2002

No Waffles at the DOL?

Eugene Scalia, the Solicitor of Labor and son of Justice Scalia of the United States Supreme Court, has issued an interesting directive on how the DOL will handle cases where an employee has agreed to arbitrate disputes with their employer. In commenting on the Supreme Court's Waffle House decision at the ABA convention, Scalia noted "saying that the government need not defer to arbitration is not the same as saying the government must not defer."

In his August 9th directive, Scalia makes it clear that in many cases the DOL should in fact defer to such arbitration agreements. One area most appropriate for deferral is matters involving individual claims for relief in the form of back pay and reinstatement, such as various whistle blower statutes. He does single out wage and hour claims as likely to not be good subjects for deferral.

It will be interesting to see how the directive will interact with the new whistle-blower claim created by Sarbanes-0xley.

Obviously, this is very much a pro-arbitration position. It will be interesting to see what sort of reaction it gets, if any, from the anti-arbitration element in Congress. My guess is that particularly given who it is coming from, it will definitely get some attention.

Just as an example of some who might harbor such feelings, Senator Leahy from Vermont, the current chair of the Senate Judiciary Committee offered a version of a whistle-blower bill, that fortunately was ultimately not accepted in Sarbanes-Oxley, which would have prohibited the new whistle blower claims from being arbitrated, unless consent were given after the claim arose.

Probably not likely to see much more than rhetoric in the remainder of this Congressional session, although who knows what will happen as election time gets nearer. However, I think those interested in arbitration as a viable method for dispute resolution should keep their eyes carefully tuned to what is going on in Congress in the future.


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