Employment Disputes & ADR

Three different things. Mediation is a facilitated negotiation with no power to decide anything; the EEOC offers it free once a charge is filed, and a settlement reached there closes the charge. Arbitration is private adjudication under the Federal Arbitration Act, binding and with almost no appeal, usually reached because the employee signed an agreement to it at hire. Negotiated settlement can happen at any point and needs no agency at all, only a release that satisfies the rules for the claims it covers. Which applies depends first on what the employee signed and second on what the dispute is, since harassment and assault claims can no longer be forced into arbitration.

When the remedy is one only a court can give, or when the employee never agreed to anything else. An injunction against a former employee who has taken a client list or source code has to come from a judge, often within days, and the Defend Trade Secrets Act opens the federal courthouse to that claim. Where there is no arbitration agreement, or the claimant alleges sexual harassment and elects to stay in court, the forum is chosen for the employer. Court also offers the one thing arbitration does not, a right of appeal if the judge gets it wrong.

The claims that follow a departure and the claims that follow a paycheck. After a departure come discrimination and retaliation charges under Title VII, the ADEA and the Illinois Human Rights Act, retaliatory-discharge and whistleblower suits, and disputes over severance and restrictive covenants, including the employer's own suit to enforce a non-compete. From the paycheck come overtime and misclassification claims under the Fair Labor Standards Act and the Illinois Minimum Wage Law, often as collective actions, and Wage Payment and Collection Act claims for unpaid commissions or vacation. We take each from the first demand letter to the signed release or the verdict.

Yes, within limits that have moved. The Federal Arbitration Act makes a signed employment arbitration agreement enforceable, and since 2018 that includes a waiver of class and collective actions, which is the clause's main value against wage claims. Since March 2022 it cannot bind a person alleging sexual harassment or sexual assault who elects to go to court. It cannot bar an EEOC charge, and in Illinois the Workplace Transparency Act treats an arbitration requirement imposed as a unilateral condition of employment as void to the extent it strips a procedural right over harassment or discrimination claims. The agreement also has to be supported by consideration and actually signed, which an audit of onboarding files does not always confirm.

It starts with a number built from the file: the back pay to date, the fee exposure under statutes that shift attorney's fees to a prevailing employee, and the cost of our own time to trial. The terms then carry rules of their own. Payments are allocated between wages, which run through payroll with withholding, and non-wage damages, which do not. A release of age claims must still meet the Older Workers Benefit Protection Act, with a reasonable time to consider it once a charge or suit is pending. In Illinois a confidentiality clause requires the employee's documented preference, written advice to consult a lawyer, and 21 days to consider with 7 to revoke. And a sexual-harassment settlement made under a nondisclosure clause cannot be deducted, nor can the fees paid to reach it.

By deciding in the first week what the company will say and who will say it. A litigation hold goes to the people who hold the emails before anyone deletes a thread in good faith. The decision-maker is interviewed once, under privilege, and the account is fixed before memories drift. Managers are told what they may not do to the complainant in the meantime, because retaliation is the claim that is easiest to prove. Communications run through one partner, so a human-resources director is not drafting the position statement between other duties. Most matters then settle at mediation on the strength of that file, and the ones that do not are tried on it.