With COVID-19 causing most states to require their citizens to stay at home, employers face a challenge: what to do about their backlog of arbitration cases?

For some cases, it may not matter when they are heard and decided. However, for others, such as those involving the potential for a backpay award, a sooner-than-later case resolution may be in the employer’s best interest. Further, waiting until after the stay-at-home orders are lifted may result in multiple arbitrations drawing employers away from running their businesses.

Enter virtual arbitrations. Offered by the American Arbitration Association (AAA) and the Federal Mediation and Conciliation Service (FMCS) in one form or another, they present the real potential for moving cases forward now. Of course, “it takes two to tango,” so the union generally has to agree with handling the arbitration virtually. In addition, the arbitrator must be comfortable with presiding over a virtual arbitration, which may require facility with programs such as Zoom or, possibly, WebEx. Fortunately, there are companies that are ready, willing, and able to provide their expertise.

Video hearings significantly decrease, or eliminate, travel costs, and provide greater flexibility in the timing and location of hearings. At the same time, conducting arbitrations by video conference may hamper the representatives’ and arbitrator’s ability to observe body language in connection with making credibility determinations, and can make reliance on multiple documents or exhibits cumbersome. Further, by limiting a participant’s view of the proceedings to what is seen on camera, video hearings also challenge policing of inappropriate off-camera conduct or witness coaching.

Regarding it takes two to tango, on April 1, 2020, the National Academy of Arbitrators (NAA) issued Opinion No. 26 responding to whether an arbitrator may order that a matter proceed by video hearing over another party’s objection, without violating the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes of the National Academy of Arbitrators.

Referencing the “fundamental importance” of parties’ “mutual consent” in agreeing to arbitrate, the NAA recognized that its position in Opinion No. 26 “concerns a possible exception” to that principle.

The NAA found that there could be circumstances where the need to “provide a fair and adequate hearing” and to “provide effective services to the parties” allows an arbitrator, “in exceptional circumstances,” to “order that a matter proceed by way of video hearing in whole or in part without mutual consent and over the objection of a party.”

The NAA also opined that where, “for example, a global pandemic makes it virtually impossible for an in-person hearing to be safely conducted, that factor may weigh in favor of the video hearing option, particularly if the hearing has been postponed previously, a party in opposition is non-responsive or declines to provide a reasonable explanation, and/or the case involves continuing liability or time sensitive matters.”

In making the decision whether to order a matter to proceed by video hearing, the NAA advised arbitrators to consider whether “the circumstances are so compelling as to override the usual presumption in favor of consensual scheduling practices.”

The NAA also cautioned that the arbitrator should be confident that they, as well as the parties, are familiar with the video hearing platform being used.

Virtual hearings are likely here to stay and there are good reasons for employers to investigate using them. While the NAA mentioned the current “context of the world-wide COVID-19 pandemic of 2019-20,” its opinion was not limited to that context. Instead, the NAA opinion “may have broader application in other circumstances.” The FMCS, which conducts labor-management arbitration hearings, reportedly lists more than 150 “video-capable” arbitrators, and now provides the parties an option to request a panel consisting only of those arbitrators.

Jackson Lewis attorneys are available to help assist with your company’s arbitration questions and proceedings.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the…

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the United States. He understands the practical and operational needs of clients, helping design pragmatic strategies to minimize risk and maximize performance. He was selected as a “Leader in the Field” by Chambers USA in 2009 and 2010.

He has represented management in numerous counter-organizing drives and participated in dozens of unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and various federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

Mr. Spitz has extensive experience in assisting employers to create union and litigation avoidance strategies suitable to the individual organization, values and industry. He has led teams conducting multi-facility labor vulnerability assessments and has advised employers in responding to corporate campaigns and demands for card check and neutrality.

Mr. Spitz is a contributing author of Employer’s Guide to Union Organizing Campaigns, Aspen Publishers, 2007. In addition, he has authored many articles regarding labor and employment law issues which have appeared in national trade publications.

Mr. Spitz is admitted to practice in the Second, Fourth, Sixth, Eleventh and District of Columbia Circuit Courts of Appeals; the United States District Court for the Middle District of Georgia; and the Georgia Supreme Court.

He received his Bachelor of Arts degree, cum laude, from Tufts University in 1990. He earned his J.D. from Emory University in 1993