American workplace dispute resolution in the individual rights era

Abstract

This article presents a theoretical conceptualization of the rise of alternative dispute resolution and its impact on American employment relations in the individual rights era. The idea of an industrial relations system advanced by Dunlop is no longer a plausible general approach for understanding American employment relations given the decline of organized labor. This article examines the question of whether a new individual employment rights-based system of employment relations has replaced it. The old New Deal industrial relations system was based on three pillars: labor contracts that provided a web of rules governing the workplace; economic strikes, actual or threatened, which provided the bargaining power for unions to negotiate these contracts; and labor arbitration, which provided the workplace dispute resolution mechanism for enforcing these contracts. The institutions of the new individual employment rights era can be seen as based on three parallel elements: individual employment rights provide the new web of rules; litigation, actual or threatened, provides the new source of bargaining power for employees; and alternative dispute resolution procedures provide the new workplace-based mechanism for enforcing individual rights. However, each of these elements contains substantial limitations, which makes the institutional structures of the new individual employment rights era something different from a new Dunlopian integrated system.