Legal Effects of Language Issues in Workplace Discourse: Evidence from Australia’s Fairwork Commission

The aim of this paper is to investigate the relationship between law and language in workplace discourse. To this end, a number of pronouncements issued by Australia’s Fair Work Commission – which mostly deals with employment litigation – are examined to see to what extent language-related problems affect both the employment relationship and the decision handed down by lawmakers when evaluating the cases submitted.

Evaluating Employment Arbitration: A Call for Better Empirical Research

70 Rutg. L. Rev. 101 (2018).Since at least 1991, issues surrounding mandatory arbitration of employment and other disputes have intrigued, perplexed, angered, gratified, and confounded academics, politicians, lawyers, and others.As with many legal issues, the first wave of scholarly work centered on the law. As the law has pretty much settled, academics have turned to empirical work, focusing on how employment arbitration works, and how it compares to employment litigation. In part due to pressure from California legislation, the American Arbitration Association (“AAA”), the nation’s leading provider of arbitration services, opened access to its data base. Owing to inevitable data limitations, most analyses have focused on outcomes—comparisons between litigation verdicts/judgments and arbitration awards. This work suffers from a serious selection bias, for there is no reason to believe that cases that result in arbitration awards are otherwise comparable to cases that have survived the several serious gauntlets that lie in the path of a case before it goes to trial. Because mediation is often an initial step in most employment arbitration system and arbitrators are not likely to consider dispositive motions, weaker cases are likely to get to a hearing in arbitration than in court.We wholeheartedly endorse good empirical work as an important means of understanding and addressing controversial policy issues, especially in the arbitration arena, and tried our hand at such work a decade ago. We have written this paper to encourage research that goes beyond evaluating awards within the AAA data set and to engage in a longitudinal study of the history of claims—from when they are initially filed with administrative agencies or arbitration organizations to when they are settled or adjudicated.

Civil Service Mandated Cutoff Scores: Challenges and Practice Recommendations

Los Angeles County's civil service rule specifies a 70% cutoff score regardless of the situation (type of job, type of assessment, or outcome of interest). This civil service rule would be difficult to defend if it were challenged in court, and the rule places the county at increased risk in the event of employment litigation, particularly with public safety jobs (police, fire, sheriff, etc.). Additionally, it is unlikely that this cutoff would optimally balance the county's interests in fair employment practices and expected job performance (SIOP, 2003). Given the propensity for public safety candidates and employees to file lawsuits related to hiring and promotions, and given the fact that public safety agencies in this county have been subjected to a number of employment-related lawsuits in the past, the current rule is problematic. Prior to this rule's development, as well as after its implementation in 1988, there has been substantial litigation related to cutoff scores, and courts have identified what they consider to be more and less appropriate methods for setting cutoff scores.