The third reform is potentially the most far reaching. Delays in processing discrimination charges by the NLRB and the Equal Employment Opportunity Commission are of near-legendary proportions. The Department of Labor isn't much better. Don't believe these agencies' cries for more employees to help with the backlog. Cut their staffs to caretaker level. Strip state and federal courts and administrative law judges of their jurisdiction to hear employment-related charges under any federal statute regulating employer-employee relations: the National Labor Relations Act and anti-union discrimination; Title VII of the Civil Rights Act, which prohibits race, sex, and natural origin discrimination; age discrimination under the Age Discrimination in Employment Act; handicap discrimination under the Americans with Disabilities Act; the Wage and Hour Law; the Family Medical Leave Act; virtually anything involving employment you can conceive of, with the exception of actions against pension and benefit plan fiduciaries under the Employee Retirement Income Security Act.
Instead, require all individual employment disputes under federal law to be subject to final and binding arbitration. Unless a company has already established a final and binding grievance or arbitration procedure for its own employees, arbitration will proceed according to rules established by the American Arbitration Association with arbitrators appointed by it, the Federal Mediation and Conciliation Service, or agreed to by the parties. Arbitrators would have authority to give injunctive relief as well as damages, including punitive damages. Decisions of arbitrators could be appealed only pursuant to the provisions of the Federal Arbitration Act, which largely limits appeals to fraud or misconduct by arbitrators and not to factual or legal mistakes. Or, if that seems too scary, give federal courts the authority to overturn obvious legal or factual errors made by arbitrators.
To encourage more companies to establish final and binding arbitration procedures for all employee disputes (including wrongful discharge, etc.) and not just those with respect to rights under federal law, any final and binding arbitration procedure recognized by federal courts under the Federal Arbitration Act would be permitted. This would encourage more companies to establish "peer review procedures" where final and binding decisions on employment disputes are rendered by panels of fellow employees who volunteer for the purpose. Employee peer review is a growing phenomenon among companies. Those who have it swear by it. Fellow employees are more sensitive to, and can be a better check on, arbitrary managers than third-party arbitrators with little or no appreciation of workplace realities. The same is true when dealing with fellow employees. They don't tolerate substandard job performance. Peer review panelists tend to apply to the conduct of fellow employees the same high standards they apply to themselves.
What about the legions of government employees, mostly lawyers, who enforce these federal laws--the General Counsel's Office of the National Labor Relations Board, the National Labor Relations Board's Administrative Law Judges, the EEOC, the Department of Labor, etc.? To paraphrase a recent campaign slogan: Give them severance pay and send them home to find honest work.
Encourage these arbitrations to proceed without lawyers. If both sides choose to proceed with a lawyer, make the loser pay the winner's attorney's fees and the entire fee of the arbitrator. If only one side has a lawyer and it loses, make it pay the entire fee of the arbitrator. If neither side has a lawyer, each pays its own costs and the arbitrator's fee is split 50-50.
Above all, keep first principles in mind when enacting these reforms. People are our most precious resource--empower them, not bureaucrats or unions. Reward companies which recognize this and treat their employees fairly.
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