Managing and Resolving Workplace Conflict: Volume 22

The decline of collective representation and rise of individual employment rights is a transformative shift in employment relations that has changed the landscape of workplace dispute resolution. I propose a model that seeks to provide a new approach to understanding how workplace dispute resolution functions in the era of individual employment rights.

The model I propose focuses the analysis on the elements that connect the structure of rights that are enacted to the patterns of employment practices in the workplace.

My argument is that the systems for enforcement of individual employment rights and the mechanisms of representation for the employees affected are as important as the substantive rights themselves in determining the impact of the individual rights regime. These three elements combine to determine the degree to which the individual employment rights serve as an effective source of power for employees in relation to their employers.

The establishment of these sources of power is what then results in the individual rights regime producing an effect on the employers’ patterns of practices in the workplace and ultimately determining the nature and character of the employment relationship.

Industrial relations, organizational behavior, and human resource management scholars have studied numerous aspects of internal workplace conflict resolution, ranging from the design of conflict resolution systems to the processes used for resolving conflicts to the outcomes of the systems. Scholars from these specialties, however, have paid considerably less attention to external workplace conflict resolution through litigation. This chapter analyzes certain areas of such litigation, focusing specifically on workplace conflicts involving issues of managerial and employee misclassification, independent contractor versus employee status, no-poaching agreements, and executive compensation.

Leading recent cases involving these issues are examined, with particular attention given to the question of whether the conflicts reflected therein could have been resolved internally or through alternative dispute resolution (ADR) methods rather than through litigation.

Implications of this analysis are drawn for workplace conflict resolution theory and practice. In doing so, I conclude that misclassification disputes could likely be resolved internally or through ADR rather than through litigation, but that no-poaching and executive compensation disputes could very likely not be resolved internally or through ADR.

The chapter draws on and offers an integrated analysis of particular types of workplace conflict that are typically treated separately by scholars and practitioners. These include misclassification conflicts, no poaching and labor market competition conflicts, and executive compensation conflicts. The originality and value of this chapter are to show that despite their different contexts and particular issues, the attempted resolution through litigation of these types of workplace conflicts has certain common, systematic characteristics.

We investigate the effects of management-employee similarity on mistreated employees’ propensities to engage in legal and organizational claiming, to quit, and to not seek a remedy in ongoing employment relationships.

We test hypotheses generated by the similarity-attraction and similarity-betrayal paradigms using Tobit regression and data from vignette-based employee surveys.

Mistreated employees with same-sex supervisors are more likely to initiate legal claims and to quit than those with opposite-sex supervisors, but less likely to initiate legal claims and to quit when they have a same-race supervisor than when they have a different-race supervisor. The effects of management-employee similarity on mistreated employees’ remedy-seeking responses exhibit asymmetries by gender and by race. The presence of same-race supervisors or other managers appears to diminish the greater reluctance of nonwhite employees, compared to white employees, to use organizational claiming mechanisms.

We know of no prior published research that has investigated the determinants of employees’ propensities to engage in multiple forms of remedy seeking, as well as the propensity to not seek a remedy, in response to plausibly illegal mistreatment not involving dismissal.

This chapter investigates attributes of an unexplored actor in the contemporary industrial relations system – plaintiff-side employment attorneys – and the premise that pre-dispute mandatory employment arbitration expands employee access to justice.

It presents data from a novel survey of 1,256 employment plaintiff attorneys and the universe of employment disputes administered by the five largest arbitration providers in the United States.

I report multiple measures indicating employment lawyers hold negative views of arbitration and that arbitration acts as a barrier to employee access to justice: A majority of attorneys say employment arbitration clauses have a positive impact on their willingness to reject a case for representation and a negative impact on their willingness to accept a client under a contingency-fee arrangement, and report negative perceptions of the fairness of outcomes and the adequacy of due process protections in arbitration relative to litigation. Furthermore, attorneys report accepting potential clients covered by arbitration agreements at half the rate of potential clients able to sue in court. Finally, arbitration and litigation filing statistics reveal no evidence that low-income or low-value claimants or claims are accessing the arbitration forum.

Novel data compiled here illuminate the institutional characteristics of plaintiff-side employment lawyers and the arbitration forum. They question the assertion that arbitration is an accessible dispute resolution forum for employment disputes relative to civil litigation.

This chapter analyzes the extent to which more experienced employers, arbitrators, and attorneys fare better in securities industry arbitration. Although studies into experience have identified a so-called repeat-player effect on outcomes, I argue that more nuanced considerations of experience are required.

I empirically analyze all employment arbitration awards from the securities system’s inception through 2008. I separate experience into two categories (between- and within-group effects) and run hybrid random- and fixed-effects regressions modeling increasing employer, attorney, and arbitrator experience on arbitration outcomes.

I find that between-group experience affects awards but that within-group experience is nonsignificant, except in civil rights cases. This implies that so-called repeat players gain an advantage over inexperienced players due to their entity-specific characteristics, not necessarily by learning to use the system to their advantage. I conclude that, although the securities arbitration system suffers from power imbalances, there is little evidence of systemic exploitation by firms.

Prior studies into employment arbitration are limited both by their definitions of experience and by their methodological approaches. I overcome these issues by employing a novel methodological approach to measure between- and within-entity experience, which adds a more multifaceted and nuanced framework to the literature than the common repeat-player versus single-player dichotomy.

The purpose of this chapter is to examine the genesis, operation, and effects of a dispute resolution body known as the National Implementation Body (NIB). The NIB was established by employers, unions, and the State in Ireland and was active between 2000 and 2009. It recorded significant success in resolving major disputes. A distinctive feature of the NIB was its networked character: the body involved key employer and union leaders and senior public servants, who exerted informal pressure on the parties in dispute to reach a settlement either within the NIB process itself or in the State’s mainstream dispute resolution agencies.

The research draws on case studies of disputes and interviews with key members of the NIB.

The findings reveal how the NIB mobilized networks to resolve a series of major disputes that threatened to derail national pay agreements or cause significant economic disruption.

The chapter examines the operation of networked dispute resolution in detail and considers the wider implications of networked dispute resolution in both Continental European and other Anglo-American countries.

This chapter reports on attempts to develop a more integrated and strategic approach to managing conflict within a large state-owned provider of healthcare in the United Kingdom that goes beyond more conventional offerings such as workplace mediation.

It adopted a detailed four-stage mixed-methods organizational case study approach, with the findings reported here drawing primarily on semi-structured interviews with a range of stakeholders, including line managers.

The data suggest that a systematic and integrated approach to identifying conflict and a range of coordinated interventions involving key organizational stakeholders can begin to embed a culture of resolution. There is resistance to such innovation, however, rooted in perceptions that it potentially weakens the authority of front-line managers.

The research reported here provides the first UK evidence for the adoption of an Integrated Conflict Management System and for the potential of such strategic choices and approaches to effect culture change in the manner sought by policy-makers.

This chapter explores the adoption and implementation of a conflict management system (CMS) in a hospital setting. In particular, it uncovers the different motivations and challenges associated with a CMS across various stakeholders within the organization.

The chapter is based on qualitative research conducted in a large American hospital that adopted and implemented a CMS over the course of 15 months. The author conducted extensive interviews with stakeholders across the organization, including top management, union leaders, middle managers, clinicians, and frontline staff. Findings are also based on an array of observations, including stakeholder meetings and conflict management sessions.

The case study demonstrates the centrality of underexplored, generalizable, and industry-specific pressures that may lead organizations to reconsider their use of traditional dispute resolution practices and to institute a CMS. It also highlights the inherent organizational ambivalence toward the design and adoption, initiation and implementation, and routine use of a CMS and it documents the different types of outcomes delivered to various stakeholders.

The chapter provides a nuanced portrait of the antecedents to and consequences of the transformation of conflict management within one organization. It contributes to the existing body of research exploring the 30-year rise of alternative dispute resolution and CMSs in a growing proportion of firms in the United States. The use of an in-depth case-study method to examine this CMS experience offers a number of important insights, particularly regarding different stakeholder motivations and outcomes.