Donald T. Ryce, Esq.
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Employment Arbitration is the general term used for using arbitrators instead of courts to resolve workplace disputes between employers and employees.
These disputes can range from alleged illegal discrimination or improper wage practices to claimed breaches of contract.
The obligation to arbitrate can arise in a variety of ways: employment contracts, personnel policies or manuals, specific arbitration agreements, or other written documents specifying that the dispute must be resolved by a neutral third party (the obligation must be in writing; oral agreements aren’t enough).
The legal ability of an arbitrator is especially important in employment disputes. Typically an employment arbitrator has an extensive background in employment matters, and a reputation that goes along with it.
Mr. Ryce has practiced employment law for over 40 years, and possesses an AV rating as an attorney.
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Arbitration is a form of alternative dispute resolution is a technique for the resolution of disputes outside the courts. Arbitration can be either voluntary or mandatory. Mandatory arbitration can only come from a statute or from a contract that is voluntarily entered into, where the parties agree to hold all existing or future disputes to arbitration.
Arbitration often allows you to resolve disputes more quickly and cheaply than by going to court. Instead of judges or juries, arbitrators decide who is at fault and and how to remedy the circumstance during a private examination of the facts.
Arbitration is a proceeding in which a dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed, or legislation has decreed, will be final and binding. There are limited rights of review and appeal of arbitration awards.
ETHICAL OBLIGATIONS REGARDING LAW FIRM EMPLOYEES
IN EMPLOYMENT DISPUTES ALLEGING VIOLATIONS OF LAW
The question arises whether the legal ramifications of employment disputes spill over to ethical considerations as well. There are at least two possible grounds for raising ethical claims regarding illegal acts in the workplace.
A. Rule 4-8.4(d), Rules of Professional Conduct
One Rule potentially implicated by discriminatory conduct is Rule 4-8.4(d), Rules of Professional Conduct, providing that a lawyer shall not “engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic.”
The above language, adopted by the Florida Supreme Court in 1993, was proposed “because studies by the Florida Supreme Court Racial and Ethnic Bias Study Commission and the Florida Supreme Court Gender Bias Study Commission identified a number of problems faced by minorities and women in the legal profession. After reviewing the findings of the study commissions, both the Bar and the individual members recognized the need for specific rules prohibiting discriminatory practices by members of the Bar.” The Florida Bar Re: Amendments to Rules Regulating The Florida Bar, 624 So.2d 720, 721(Fla.1993).
The court’s discussion of the proposed rule suggests that primary focus of the “discrimination” language was on inappropriate statements reflecting bias on the speaker’s (or writer’s) part. Thus, there was considerable discussion of First Amendment rights in the context of the special responsibilities placed on attorneys. Id. (“Lawyers, because of their unique role in administering justice, in some instances are subject to ethical constraints that can burden their constitutional rights of free speech.”).
Although the Florida Supreme Court has ruled that Rule 4-8.4(d) applies only when the potential offender is “engage[d] in conduct in connection with the practice of law,” The Florida Bar v. Brake, 767 So.2d 1163, 1166 (Fla. 2000) (“[R]ule 4-8.4(d) represents an exception to the general rule and applies only when a lawyer engages in misconduct while employed in a legal capacity”), the court has applied that concept very broadly. (“[C]ontrary to Frederick 's suggestion that rule 4-8.4(d) applies only to conduct ‘in a judicial proceeding,’ the rule itself more broadly provides that it applies to ‘conduct in connection with the practice of law.’ This Court has recognized that ‘[w]hile conduct that actually affects a given proceeding may be prejudicial to the administration of justice, conduct that prejudices our system of justice as a whole also is encompassed by rule 4-8.4(d).’”). The Florida Bar v. Federick , 756 So.2d 79, 86-87 (Fla. 2000). It is likely that Rule 4-8.4(d) is potentially applicable anytime an attorney is acting in the capacity of a lawyer, regardless of whether the attorney is providing legal services at the time.