|
Without A Union, You Could Be Forced To Sign Away Your Rights. If you are a manager, supervisor, or a non-union employee, you may be among the millions of American workers who has been forced by your employer to give up important legal protections.
Ending Privatized Workplace Justice – Why We Need the The Arbitration Fairness Act of 2007
by Ellen Dannin You may not even be aware that you have lost any rights. But by submitting that job application, accepting that job offer, or signing that you have received the employee handbook and will abide by its terms, you have agreed to a “pre-dispute arbitration agreement”. That “agreement” takes away your right to sue your employer if it ever violates laws such as Title VII’s prohibition of discrimination based on race, color, sex, religion, or national origin, the Family and Medical Leave Act, the Age Discrimination in Employment Act, fair wage payment laws, ERISA, and the Americans with Disabilities Act.
What you are left with is an arbitration program created and run by your employer. Your employer may even be allowed to alter the rights those laws give you. The Arbitration Fairness Act of 2007 is a new bill that would end these practices. The Dark Side of Arbitration
Many of us think of arbitration as an easy, quick, inexpensive, friendly way to resolve disputes. It can be that. However, employees who are forced into pre-dispute arbitration “agreements” are part of a movement that is privatizing our civil justice system. Mandatory pre-dispute arbitration is replacing access to the courts with a system of the employer's choosing that is often weighted in the employer's favor. It is not just in the workplace that rights can be lost and people be forced into giving up their legal rights. Any of us who has ever clicked on an “I accept” button when loading new software had probably agreed to give up the right to sue and may even have agreed to resolve the dispute in an inconvenient location.
It is the workplace, though, where the impact of lost rights can be most detrimental, since most of us depend on our jobs to provide for our basic needs. According to the National Employment Lawyers Association (NELA)
“At least one-fifth of all employees are subject to mandatory arbitration, a larger proportion than are protected by union contracts, NELA President Kathleen L. Bogas said. She described the existing predispute mandatory arbitration clauses as a "tool for large companies to stack the deck in their favor in litigation with their employees or customers” What We Lose under Pre-Dispute Arbitration Agreements
This discussion focuses on employment pre-dispute arbitration agreements. However, most of it applies to all situations in which we are now forced to give up basic rights Congress or state legislatures created when they passed laws to protect our rights. In the case of workplace laws, they may not be perfect, but the alternative is no rights under the at-will system of employment that workers who are not unionized are likely to have.
Since 1991, when the Supreme Court handed down the Gilmer decision approving pre-dispute arbitration agreements, employer's have been forcing employees to "agree" to arbitrate any disputes that may arise out of employment. These pre-dispute arbitration agreements force us to give away the right to sue to enforce our rights well before a dispute arises and before the parties have a sense of how serious the dispute is. This is a whole different playing field than a post-dispute agreement to arbitrate when the parties are aware of how serious the problem is. Most of us have no idea what we lose when we lose access to the courts and are forced into arbitration.
When you file a case in a court, you are note charged for the judge’s salary nor for the jury costs. Access to try a case in the courts is free, except for filing fees. Filing fees are relatively low and can be waived for plaintiffs who are poor.
Arbitration is not free. The parties must pay the arbitrator, and arbitration fees can be very high, so high that an employee is unlikely to be able to afford them. As a result, an employee may give up important workplace rights. Courts follow rules and laws that are applied to all parties and are put in place by legislatures or the courts system itself.
In contrast, under pre-dispute arbitration agreements, it is the employer who decides on the rules. Studies and court cases have shown that employers tend to draft those procedures to favor the employer. Not only can an employer change the procedural rules, it can make changes to legal rights, in effect amending the laws our legislatures enacted to protect us and taking away rights. Court decisions are public and now often available on the internet. Public decisions provide important information to the public about the enforcement of our laws. Arbitration decisions under pre-dispute arbitration agreements are usually secret.
Lost rights When employees are subjected to pre-dispute arbitration agreements, they lose important constitutional and statutory rights to a fair resolution of their dispute.
The basic law in the United States is that a person cannot simply agree to give up a statutory or constitutional right. Such a right can only be given up through a waiver. The basic law in the US is that for a waiver of a right to be effective, the waiver must be knowing, intelligent, and voluntary. It goes without saying that almost no employee “agreement” to a pre-dispute arbitration agreement ever meets these standards. Here is what would have to take place for an employee to waive these important constitutional and statutory rights.
Knowing The language of the arbitration agreement would have to be clear and written so that the employee understood exactly what rights were given up. The level at which the language was written would depend on the employee’s level of education and awareness and ability to read and understand.
Standard legal language would rarely meet this requirement. This means that almost no employee who is now bound by a pre-dispute “agreement” has knowingly waived rights. Intelligent
Second, in order to waive statutory and constitutional rights, the waiver must be intelligent. This means that the employee must understand the nature of the rights waived, that is, lost. Here are just a few of the rights that would have to be included in a pre-dispute arbitration agreement so that an employee could be aware of them and then intelligently waive them.
Rights that are available for a case litigated in court but lost in arbitration include the Constitutional rights under Articles I and III and rights under the 5th, 7th, and 14th amendments. What that means is the right to a trial by a jury of one’s peers, and a trial that includes a fair process as laid out under federal or state rules of civil procedure. It also means evidence that is vetted through the rules of evidence. The rules of evidence are far more than just letting employers raise objections. The rules of evidence are a device that helps us think about and assess the quality of evidence. For example, they tell us to be cautious with hearsay, because hearsay evidence has a quality akin to the game of telephone. It is evidence that someone said someone said something.
Trials are conducted by an Article III judge who has been appointed for life and who is required to instruct the jury in a fair, objective, and nondiscriminatory manner. Those instructions and all rulings can be vetted on appeal. Failure to meet these standards means that the outcome can be overturned. In contrast, qualified as they are, experienced as they are arbitrators are basically rent-a-judges whose income is dependent on being chosen by the parties. This means they know that how they decide will affect their next appointment. Thus, they have a financial temptation to rule in favor of the party most likely to give them that next job. In most cases that is the employer. This is not just speculation. Research has shown that repeat party players (usually the employer) in arbitration are more likely to win, and this tendency is heightened when the arbitrator is a repeat arbitrator with this employer.
Finally, one of the most important trial rights that can be lost in arbitration is the right to review on appeal. The court of appeals can overturn a trial court judge based on various standards of review, depending whether the issue is one of law or fact. Standards of review vary from whether the decision is supported by the weight of the evidence or by clear and convincing evidence in the case of fact decisions or, in the case of a legal decision, because the wrong law was wrongly interpreted and applied to these facts. In contrast, the Supreme Court has held that decisions by arbitrators can almost never be reversed, no matter how poor the decision. It reaches this conclusion based on its interpretation of arbitration “agreements” which usually state that the arbitrator’s decision is to be “final and binding.” The Federal Arbitration Act sets out a standard of review that is almost as difficult to meet. It states that arbitration agreements can be held void (thus voiding the arbitration decision) if the terms of the contract are unconscionable, if it was entered into by fraud or under duress, or if these was inadequate consideration for the agreement. A lack of consideration means that there was no reasonable exchange. Voluntary
The third standard for waiving rights is that agreement must be voluntary. Few people can afford to turn down a job just because they are giving up future rights that may never come in to play. In fact, so financially stretched are most American workers that their financial status can be considered to be a form of duress that forces them to enter into the agreement to waive rights. Employees who will not "agree" to pre-dispute arbitration agreements are not hired or are fired. And that is legal in most states.
In most states, the courts have shown themselves willing to approve any terms – no matter how shoddy or unfair – and are willing to find agreement when the facts show no real agreement. These "agreements" may be buried in employee handbooks, referred to in applications in the vaguest of terms, or otherwise have their impact hidden. For all these reasons, the waiver of constitutional and statutory rights is forced on employees and is therefore involuntary or entered under duress. The Federal Arbitration Agreement makes duress a grounds voiding arbitration agreements, yet the courts tend to see no duress in even the most egregious situations. The courts assume that a worker who did not want to agree to arbitrate as a fair quid quo pro for the job is perfectly free to go elsewhere and find a job that does not require arbitration.
Compare These Agreements with Rights Under the OWBPA One way to see how poorly treated most workers are is to compare the ready willingness of the courts to uphold pre-dispute arbitration agreements, no matter how shoddy, with the rights Congress created for older workers who were being terminated and asked to waive their workplace rights. The rights under that Older Worker Benefits Protection Act provide a basic model for the rights all employees should have. The OWBPA says that rights cannot be waived unless the document is written so the employee can understand it; it must specifically refer to rights and claims; it cannot waive rights that arise after the date the waiver is signed (i.e. this is a post-dispute waiver only); the waiver of rights can only be in exchange for additional consideration, such as severance pay; the employee is advised in writing to consult an attorney before signing, is given twenty-one days to consider, and has up to seven days to revoke the agreement after signing; the person who claims the employee has waived rights has the burden of proving the waiver; and the employee cannot waive the right of the EEOC to enforce the law if there is a violation.
The Arbitration Fairness Act of 2007 On July 12, 2007, Senator Russ Feingold (D-WI) and U.S. Representative Hank Johnson (D-GA) introduced the Arbitration Fairness Act of 2007 (H.R. 3010, S. 1782), a law that is intended to stop these sorts of abuses in employment, as well as the consumer arbitration “agreements” we see everywhere these days.
As Feingold's website says, the point of the legislation is: “to ensure Americans are not forced into mandatory arbitration agreements to resolve employment, consumer, franchise or civil rights disputes. The bicameral Arbitration Fairness Act of 2007 amends the Federal Arbitration Act to make pre-dispute agreements to arbitrate employment, consumer, franchise, or civil rights disputes unenforceable.”
Hundreds of bills are introduced into Congress each year. This is a law that can make a difference for millions of Americans. If enacted, it will redress the unfair situation created by courts that have effectively allowed employers to rewrite our workplace laws and destroy fundamental constitutional and legal rights. It will give us back our rights. Remember, A Workers' Best Protection is to Organize and Join A Union.
|
