Arbitration versus Litigation

The terms ‘arbitration’ and ‘litigation’ are often paired off against each other. When or if a dispute arises, we recommend knowing the general differences and similarities between these procedures.  

Litigation is a lawsuit filed in a court of law. People may be self-represented, but more often, attorneys represent their clients in moving through the phases of litigation. Phases include filing a complaint (or petition, depending on the court and type of issues involved), answer, discovery, motions, and may eventually involve a trial to a judge or jury.

 Arbitration is like litigation in that it is a process to resolve a dispute between two or more parties. It is a private means of resolving disputes. Arbitration may occur non-publicly. It usually takes place when parties have agreed in advance, through a written contract, to arbitrate future disputes on a specified subject matter, in lieu of bringing a lawsuit in court. The arbitrators are paid by the parties to assist in resolving the matter. Pros of arbitration can be that it moves more quickly, can be less expensive, and results in a final resolution earlier.  A major con for some is that there is no means of appeal or review after an arbitrator enters an award. The exception to that would require showing deceit or fraud or major errors in the fairness of the process, within very limited circumstances.

 More and more, large employers may require new employees to enter arbitration agreements in the onboarding process at start of employment. They will often cover possible future employment-related disputes. Employees should think carefully about rights they give up doing so. Employers should think carefully about how to draft these kinds of agreements and about how to present them to employees for their review and agreement. Courts and policy makers in our legislatures continue to consider how, whether, and to what extent these kinds of arbitration contracts should be enforced.

 If you are faced with arbitration in lieu of litigation, or are considering entering an agreement to arbitrate claims, or would like to craft a valid arbitration clause for your business, an attorney may be able to help. An experienced attorney can ensure your rights are fully addressed and you are fully informed about what you give up and what you gain in arbitration versus litigation.

 Bonnie Boryca and Erickson | Sederstrom, PC’s team of attorneys are well-versed in these issues. 

Holiday Party Tips for Employers

The end of the year brings various obligations for employers and also opportunities to spread holiday cheer to employees, whether through end-of-year bonuses, holiday time off from work, or, as discussed here, employer-hosted holiday parties.

Examples of disputes with employers arising out of holiday parties are not hard to find. Holiday parties can give rise to claims, sometimes more than other environments because of the festive atmosphere that encourage one to “eat, [drink,] and be [too] merry.” The following tips are offered to help avoid troublesome situations that could give rise to a claim.

Be open to all viewpoints in hosting your party.

When planning and inviting employees to your holiday party, it is a good idea to call it just that, a holiday party, rather than tying the event to a particular holiday, like Christmas or Chanukah. The purpose of doing so is to ensure that employees of all religions and backgrounds are equally encouraged to participate in the out-of-office event. Even if supervisors are aware that a particular employee’s beliefs prevent him or her from celebrating, everyone should be welcomed to attend.

But don’t make attendance at holiday events mandatory.

With that said, everyone should be welcomed to attend, but no one should be required to attend. If attendance is mandatory, then the party may be considered work-time, in which an employer has to pay wages for non-exempt employees. Also, employees who do not celebrate holidays should not be required to attend and celebrate. Numerous cases have been litigated against employers in which an employee alleged she was required to participate in a holiday event that was contrary to her religious beliefs. Encourage employees to come, but do not require that they do.

Consider how to restrict excess consumption of alcohol.

Many problems that arise at out-of-office events, whether harassment or injuries, stem from over-indulgence of alcohol. A proactive employer should think about how to limit excessive drinking by employees, both to protect employees and to protect itself from potential liability.

For catered events or parties held at event centers, it can be a good idea to have a cash bar, rather than an open bar. Another way to try to limit excess consumption is to ask bartenders to be aware of who they are serving and decline to serve anyone who appears inebriated.

Also, serve appetizers, dinner, and dessert if you intend to have alcohol available throughout the evening. Employers may also want to have taxis or shuttles available for employees who need assistance getting home at the end of the evening. A party held over an extended lunch hour can also discourage excessive drinking and may be appreciated by employees who often have multiple family, church or other events to attend in the evenings during the holiday season.

Review policies with employees in advance of any party.

Your anti-harassment, dress code and other employee conduct policies apply to an out-of-office holiday event. It is a good idea to review these with employees a couple of weeks in advance of an event, by way of e-mail or memorandum summarizing the relevant policies.

Another idea to avoid inappropriate attire at parties is to hold the party right after business hours. This can encourage employees to come in their ordinary work attire, which can be a reminder that conduct at the party reflects on their professional lives.

Check your insurance coverage.

Good to do any time of year, but particularly when planning any large scale event for employees, is checking in with your insurer on the scope of your coverage. Does your policy contain exclusions for off-site events, or attendance-optional events held after hours? Does serving alcohol trigger any exclusion? Always best to be prepared.

Be vigilant and ask your team leaders to set a good example of conduct.

While you surely want everyone to spread the holiday cheer, consider asking your team leaders or supervisors to keep any eye on their teams at the party. If your business’s leaders set a good example at the party, other employees are likely to act professionally and still have fun.

Have fun!

And, of course, encourage everyone to have a good time. End of year celebrations can be a great way to encourage team building and boost morale for a great start to the New Year. 

Bonnie Boryca is an employment law attorney at Erickson | Sederstrom, PC. She can be reached at (402) 397-2200.