Alternative dispute resolution, or “ADR,” refers to any procedure where the parties to a dispute ask a neutral third party to help them reach an agreement to avoid litigation. Arbitration is one such ADR procedure that is widely used in the employment setting. These FAQs provide basic information about arbitration and the effects that decisions in arbitration cases, to which OFCCP was not a party, may have on OFCCP enforcement activities.
Arbitration is a form of ADR in which an arbitrator, rather than a judge or jury, applies the law to the facts of a dispute to resolve the dispute. There are two forms of arbitration: binding and nonbinding. Under binding arbitration, the parties agree to accept the arbitrator’s decision as final, limiting their right to seek resolution of the dispute by a court. But under nonbinding arbitration, if either party rejects the arbitrator’s decision, the parties are generally free to go to court in the regular way.
OFCCP may consider an arbitration decision (to which it is not a party) during a compliance evaluation or complaint investigation when its subject matter is relevant to the subjects that OFCCP enforces. Issues under OFCCP’s enforcement authority which may also be the subject of an arbitrated dispute between a contractor and employee include discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran, or whether employees inquired about, discussed, or disclosed their compensation or that of others.
No. An employment agreement may require an employee of a federal contractor to submit claims against the employer to binding arbitration. But the arbitrator’s award does not preclude OFCCP from exercising its enforcement authority over an employer who is a federal contractor or subcontractor. Cf. EEOC v. Waffle House, Inc., 534 U.S. 279, 293–96 (2002).
No. An employee can seek remedies through arbitration with his or her employer and simultaneously file a complaint with OFCCP. But irrespective of the arbitration’s outcome, the employee is not entitled to a double recovery of monetary damages. Cf. Waffle House, 534 U.S. at 296–97.
The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.
Last updated on April 30, 2020