Document Type

Article

Publication Date

1-11-2016

Abstract

Privatization of public law dispute resolution in workplaces has been under intense scrutiny in the context of arbitration Another kind of workplace dispute privatization is presently underway or under serious consideration in several states In connection with state workers' compensation statutes one state has implemented and others are considering a dispute resolution model in which employers are explicitly authorized to opt out of coverage ÔÇ£Alternative benefit plansÔÇØ created under such statutes permit employers to among other things unilaterally and without limitation designate private factfinders whose conclusions are subject to highly deferential judicial review This model is arbitration on steroids While there may be doubts in some quarters about the neutrality of arbitrators reasonable doubts about the loyalties of an employerappointed factfinder are inevitable Such a design would mark a decisive break with the quid pro quoGrand Bargain of the early twentieth century and there is a risk of some states getting caught up in a ÔÇ£race to the bottomÔÇØ where states not recognizing a right to a remedy for physical injury become havens of lowcost labor and thus exert pressure on states that safeguard traditional rights to follow suit The Supreme Court may be forced to intimate an opinion on the constitutional right to a remedy for personal and especially physical injury whether within or outside of the workplace The Court has not squarely addressed the issue since 1917 when it decided New York Cent R Co v White a case originally upholding the constitutionality of workers' compensation systems In White the Court hinted but did not clearly establish that the right to a remedy for physical injury may not be abolished without substitution of a reasonable remedy

First Page

123

Download

Share

COinS