Workplace Justice without Unions, by Hoyt N. Wheeler, Brian S. Klaas, and Douglas M. Mahony, Kalamazoo, Mich.: W.E. Upjohn Institute for Employment Research, 2004, xii + 229 pp., ISBN 0-88099-313-8.

This valuable book explores at an empirical level the status of job security protection available in the American workplace. The United States is unusual among advanced post-industrial countries in that it provides no comprehensive standard of protection against unfair or arbitrary dismissals. The American rule of employment-at-will remains in place, notwithstanding limited exceptions derived primarily from federal antidiscrimination statutes and recent developments in state tort and contract law. Unionized establishments address job security through “just cause” provisions negotiated in collective bargaining agreements, but the steep decline of unions has meant that this too is a limited option. As the authors note, employers have rational economic grounds for wanting to minimize the prospect of arbitrary or unfair dismissals: they include attracting and retaining productive employees, reducing litigation-related costs, and keeping unions at bay. The book focuses on various approaches employers have developed to provide some form of due process to employees facing termination. The authors seek to assess how these employer-designed processes of workplace justice measure up when compared with labour-management arbitrations, civil jury trials, and even labour court judgments in other countries. These are important questions: workplace justice procedures in non-union firms encompass 92% of the private sector workforce. The most celebrated and controversial procedure developed by employers, to which the authors devote principal attention, is employment arbitration. As a result of several Supreme Court decisions, employers are now able to require as a pre-condition of employment that all job-related claims be presented to an arbitrator rather than a court. Many employers have moved in this direction since the early 1990s. The authors also evaluate more informal employer procedures such as review of worker complaints by peer review panels and by human resource managers. Treatment of employment arbitration includes an analysis of the reasons for its growth, and the policy arguments for and against its use. The authors attribute the recent popularity of employment arbitration to employers wanting it and the federal government (especially the Supreme Court) encouraging it. Importantly, neither of these reasons is employee-driven. The authors’ review of the extensive literature arguing pros and cons is nuanced, but adds little that is new. Indeed, their formally neutral conclusion recognizing “powerful arguments on both sides” seems a bit evasive. The soft treatment of key employee-related disadvantages (employers as the only repeat players; lost access to jury trials; private nature of arbitration processes; lack of meaningful judicial review) may reflect a desire not to allow the normative controversy to distract from their empirical contributions. Those contributions begin in chapter three with a review of existing studies on how workers have fared under employment arbitration and other dispute resolution systems. The authors are sensitive to the difficulties of comparing win/loss rates or amounts recovered when examining employment arbitrations that involve either employee statutory rights (contrasted here with court cases involving such rights) or employee rights under employment contracts and personnel manuals (contrasted with labour arbitration cases). The authors end up withholding judgment due to dissimilarities in subject matter, settlement rates, the effects of protracted proceedings on amounts owed, and other factors. However, the authors’ own in-depth survey of 176 experienced employment arbitrators yields some more definitive results. One finding, not unexpected, is the arbitrators’ perception that employers are significantly more likely than employees to have competent representation. Another is that unlike typical just cause provisions of labour agreements or unfair dismissal statutes, which require the employer to prove a proper reason for termination, nearly one-third of employer policies require employees to prove a violation of their rights—and employees’ win rate in these latter employment arbitrations is much lower than when employers …