Issues in Employment Law
May 2002
In the District of Columbia, as well other jurisdictions, an employer may not require employees to pay all or part of arbitration costs.
The D.C. Circuit Court of Appeals in Cole v. Burns Int'l Security Services, No. 96-7042 (Feb. 11, 1997) listed the five requirements as a condition of employment to be valid and enforceable: (1) neutral arbitrators, (2) more than minimal discovery, (3) a written award, (4) all types of relief available in court would be available in arbitration, and (5) no requirement for the employee to pay unreasonable costs or any arbitrator's fees. The Court here interpreted an agreement that was silent as to who would pay arbitration costs to require that the employer pay all arbitration costs, so to make the agreement legal. When a contract's terms are ambiguous the court will use the legal interpretation. The purpose of arbitration is to change the forum for dispute resolution only; it may not give a party fewer rights than it would have in court. A few jurisdictions allow some splitting of arbitration fees.
Please consult us for the specifics of your jurisdiction.
An employer must seriously consider work accommodation requests by employees to avoid being in violation of the Rehabilitation Act and Americans with Disabilities Act ("ADA").
In Breen v. Dep't of Transportation, No. 00-5363 (Mar. 15, 2002), an employee who was suffering from an obsessive-compulsive disorder requested that her employer allow her to work extra hours each day. She would then get one day off every 2 weeks and still complete her 80 hours for that 2-week period. The D.C. Circuit Court of Appeals held that this alternative work schedule could be a reasonable accommodation that would enable the employee to perform the essential functions of her position and reversed the summary judgment the trial court awarded to the employer.
Employees with "disabilities" as defined by the Rehabilitation Act and ADA are entitled to reasonable accommodation in their employment to continue working.
Please consult us if you are considering rejecting a potentially "disabled" employee's accommodation proposal.
