More Than Half of American Workers Can't Sue Their Employer (qz.com)

An anonymous reader shares a report: In the past two years, Google, Facebook, Twitter, Microsoft, and Oracle have faced various high-profile lawsuits related to their employment practices. And while those cases generated headlines, workers in almost every sector sue their bosses over emotional abuse, unpaid wages, and discrimination. The ability to sue over wrongful treatment at work is essential to the balance of bargaining power between employer and employee. Unfortunately, more than half of non-union, privately employed Americans -- some 60 million people -- have signed away this right. They are instead beholden to a process known as arbitration. Signing a mandatory arbitration agreement is theoretically voluntary, but refusing to do so can cost a candidate their job offer. Once signed, the agreement strips the employee of the right to take her employer to court for unfairly low pay, termination because of pregnancy, race-based discrimination, loss of paternity or maternity leave, and much more. According to a study published this week by Alexander Colvin of Cornell, more than half (54%) of private, non-unionized workplaces have mandatory arbitration procedures. For larger companies (over 1,000 workers), that jumps to 65%. By contrast, in 2003 Colvin found that just 14% of companies had arbitration agreements.

Comments

Yup

[Captain Splendid]

Another US-invented oxymoron: "Right To Work" laws are anything but. At least all that FREEDOM! balances it out though, no?

Re:Yup

[operagost]

"Right to Work" is not some blanket designation for "bad workplace policies that I want government to abolish". All "Right to Work" stands for is preventing closed shops... that is, a workplace where one MUST join a union to be employed. Now, mind you, OSTENSIBLY a union should protect you from policies such as third party arbitration through a CBA, but that's not guaranteed. So lumping an arbitration agreement under "Right to Work" is simply incorrect.

Re:Yup

[Captain Splendid]

So lumping an arbitration agreement under "Right to Work" is simply incorrect.

Which is why I began my sentence with "Another", as in "in addition to". Could have been clearer, though.

Re:Yup

[Anonymous Coward]

When I was a teenager, I worked for a grocery store.

I had to pay a $50 initiation due to the union just to work there. Then I had to pay around 5% of my wages as ongoing dues to the union as well. My first week's paycheck was a negative number. The grocery store was used to this, and took the rest of the first week's dues out of my second week paycheck, which also had a chunk of dues taken from it and was a pittance. I made $0.10 over minimum wage, so it's not like this was a "high-paying union job" or something. Across town, the non-union grocery store paid only minimum wage.

Oh, but the union would give me back $25 of those dues if I attended a union meeting within my first month! So I did. They never gave me my money back. Now, the job was OK, but the union was basically useless. As a "front-end clerk" (read: grocery bagger), I didn't get raises on the schedule that literally all other employees got. I also didn't get the same level of health insurance. Or any 401k matching, life insurance discounts, etc. Oh, but I paid the same percentage of my paycheck in dues.

I worked there through college, eventually getting raises up to $10/hr. as a checkout clerk. As a checkout clerk, I got all of the "stuff" that the union promised. The baggers still got screwed over. And every union negotiation made it worse on them. And from what I understand, that's all gone downhill for all of the floor staff in the years since I quit working there.

This is why Right To Work passed so many states' legislatures. Nobody thinks these asshats (UFCW, I'm looking at you) deserve a free-ride anymore. They should have to fight to convince every single member that they're necessary. They should have to act in their members' best interests instead of simply in the interests of the union bosses. Just as an example: A few years after I left that job, the local UFCW boss was convicted of embezzling from the union. A couple of his deputies went down with him, but testified against him and didn't get prison time. The whole top management layer of the union was corrupt. (Shocker, I know.)

Now, they can't do that anymore. If I want to work at that grocery store, I have the option of becoming a UFCW member or not. They can't deny me employment because of my refusal to join the union. And everyone with half a brain should refuse to join that particular union. They're worse than useless.

Re:Yup

[Anonymous Coward]

I'm doing fantastic under those laws. I work hard and outcompete all of my colleagues. So long as I keep doing that and they don't cough up enough to hire someone even better, I'll be collecting paychecks. They've desisted from hiring someone better for less: it's more expensive to search for them than to just pay me.

Re:Yup

[Carewolf]

"Right to Work" is not some blanket designation for "bad workplace policies that I want government to abolish".

Here I thought it stood for legalisation of serfdom, just like these contracts.

Re:Yup

[liquid_schwartz]

My observation in life is that things work best when no one side holds too much power. Human nature to abuse power is simply too strong and the only way to subdue that is to not allow any one side of *any* issue to get too much say. Give management too much power and workers will be abused. Give unions too much power and the company will be driven out of business.

Re:Yup

[rtb61]

Of course your entire anonymous claim could just be a typical PR lie. Hmm, 5% of wages as union dues, grabbed an example https://www.atpe.org/en/Member.... So teachers in the US are paid $174 divided by 0.05 equals $3,500 per year, wow, that's low. You know every time I read any anti-union story with huge exaggerations, I take that to be a PR douche bag paid by corporations. So lets see all the examples where workers pay 5% of the wages as union dues, surely there must be thousands of them.

Re:Yup

[KozmoStevnNaut]

Translated: "I work myself to the bone, in the vague hope that my employer won't randomly decide to replace me, for no discernible reason".

Wouldn't you rather be able to relax and enjoy life?

Re:Yup

[slashrio]

Throughout your life as a kid you're conditioned to respond favourably to the words 'Free', 'Democracy' & etc.
As an adult people still enter a trance of acceptance when those words are uttered.
And of course the majority are just stupid and indoctrinated.

Re:Yup

[thegarbz]

The solution is not to allow people to collectively gather to counteract each other's power, it's to strip power away from the powerful.

The idea that you can't sign away your right to sue would be a good first step, employee protections laws would be a second, and an employee advocating ombudsman to reduce the cost of disputes would be another great step.

Re:Yup

[Anonymous Coward]

What you're describing is collusion of unions with management. That is a heinous crime, but you do need to remember it is the result business owners using their power and wealth to corrupt and place bought-off people as union bosses.

There is no remedy to this kind of exploitation except workers being active in representing themselves (= as union locals, hopefully in an independent union not controlled from afar.) Anyway, with no union, you're likely to just be working for minimum wage (7.25 - 10 USD/hour or so, depending on state) with essentially no benefits. Perfectly legal.

Re:Yup

[TheRaven64]

In some states, that's actually a pretty recent right. For example, in Texas oral sex was covered under the sodomy laws, which were only overturned by a supreme court ruling in 2003 - and even that wasn't a unanimous ruling (6:3). This ruling also had the effect of overturning similar laws in 13 other states. 25 states in total had laws banning oral sex up until the '80s or later.

So, while the people of the USA may be free to suck cocks today, they've had that freedom universally for less time than a number of other rights, such as the end of segregation or universal suffrage.

Re:Yup

[houghi]

From what I read, US Unions are not so much unions as they are guilds. That is they are there to protect the jobs and/or trade, not so much the people.

In Belgium there are a few that are like that as well, but most are generic unions. That is: you go to a union and pay your monthly fee. You can do that when you are 18, I think.
You then go and work in any company you like. Nobody will ask you if you are union or not, because nobody cares. Companies larger than 50 employees must have union representatives. These will be from different unions.

The reason I joined a union was when I was let go, they will take care of all the paper work concerning unemployment. It was let go on a Friday and joined the union on a Monday with my papers in hand.

I am now with the same union for many years over many companies in different functions and types of companies.

Now the (elected) union representatives in companies is a different matter. They are extremely hard to fire and they abuse that by slacking off. Luckily not all of them are like that.

And again, nobody here will ask if you are in a Union, because they do not care. As long as the company follows the rules, there is no issue and if they don't, you could join at that moment anyway if you do not take other steps, like taking a specialized lawyer. (They have to be specialized, otherwise they won't know)

Re:Yup

[thsths]

You may have to re-calibrate your irony detector.

Re:Yup

[KozmoStevnNaut]

With the crazy opinions some people have these days, it's getting seriously hard to tell. Poe's Law is in effect.

Re:Yup

[schleimkeim]

America is a fucking joke. Except that it's not funny.

We should sue them

[jfdavis668]

It's the only way to get this resolved.

Re:We should sue them

[networkBoy]

Actually you can, even with the arbitration clause.
The logic is simple and sound (and works).
You signed the right to sue away under the duress of not having a job if you didn't.
A decent enough lawyer will still take your case after signing that waiver and will still get to a court hearing/trial.

Re: We should sue them

[Goobermunch]

That's not actually true. The Federal Arbitration Act makes it nearly impossible to invalidate an arbitration clause. It preempt state laws and mandates enforcement of arbitration agreements. Another thing that it does is make it nearly impossible to appeal an arbitration award. That means that if the arbitrator makes a mistake of law or ignores facts, you cannot correct the errors.

Re: We should sue them

[networkBoy]

In CA there have been several cases where arbitration clause was overruled by a judge... Maybe it's an issue of different circuits having different precedents?

This should not be legal.

[Anonymous Coward]

You should never be able to sign away your rights. This is a terrible precedent. To me, that's part of the definition of what a right is. Something that is by definition yours and cannot be taken away. Inviolable. I just don't understand how you can be made to sign a piece of paper that takes away some of the things that are the absolute bedrock of our country.

Re:This should not be legal.

[bsolar]

You cannot give up what is not in your prerogative to give up and in most countries you cannot give up most rights through private contracts since private contracts are governed by private law which is hyerarchically inferior to the laws granting these rights, making them untouchable no matter what your will is.

Re:This should not be legal.

[Wootery]

voluntarily

In practical terms, that just isn't true. Plenty of Americans have to take the work they can get, no?

I'm glad this kind of nonsense would never fly in Britain or Europe.

Re:This should not be legal.

[CptJeanLuc]

Which is why for these type of rights, the law should state they cannot be signed away. Unfortunately, in my experience employers will put stuff into contract that is not enforceable (and which is basically illegal) such as non-compete clauses, but a non-unionized employee will not take the risk of entering a legal battle with their employer over it.

Unions are important, they keep the employment relationship more honest and balanced. People-friendly laws are a good thing, protecting the rights of the citizens of the country. Law-makers should remember, they serve not only the "job-creators" but the rest of us also.

Re:This should not be legal.

[houghi]

I went to a course in social rights in Belgium and learned how it is from the employers point of view. They started with "You can put ANYTHING in a contract, but that does not make it legal." Half of the 10 day course was saying this and explain why some things where illegal or different from what people think. e.g. the part that says that you are not allowed to work at a competitor? The amount is what the company has to pay. All the employee needs to do is say 'I was not allowed to take a job, give me the monies..' and start working at a slightly different job. That is if he earned enough, otherwise he can still work there AND get the monies.
The other half was them saying "Things change so much every month, just contact us and we will sort it out". Small part was "We do the salary calculation for the company, we are there for them, not for the employees. Keep that in mind if you have issues."
Another right you can not sign off is the amount of hours you are allowed to work. Many in especially management get extra holidays, but will be expected to work more hours. That is not true. They still have the same rights. You can not wave away those rights. That is not up to you.

Re:This should not be legal.

[torkus]

Ask the SCOTUS who ruled binding arbitration is valid.

That was 10+ years ago so it's no wonder this is a 'recent' change per the article. I knew this shit was coming one way or another when they ruled that way.

Arbitration is a scourge

[JohnFen]

Arbitration is a scourge designed to deny you your legal rights. It only works properly when there isn't already a power imbalance.

Re:Arbitration is a scourge

[Anonymous Coward]

It's privatisation of the judiciary. Even Milton Friedman explicitly singled out the courts as one area he would NOT privatise, but of course the business bullshit brigade just blew-hard until they got that too.

The blame lies with a public which allows such intellectually vapid arguments to win out over common sense, civic values, and ultimately the rule of law. If people called out bullshit for what it is, we wouldn't be living today in such a fucked up shell of our former societies and economies.

Re:Arbitration is a scourge

[JohnFen]

I never thought of it in those terms, but you're right. That's precisely what it is.

Re: Arbitration is a scourge

[tomtomtom]

Arbitration has a huge advantage for individuals though - the cost is very low which significantly promotes access to justice. The downside is the lack of transparency (as cases are all confidential) which means its difficult to know if you really will get a "fair" result.

A few years ago, a former employer of mine treated a group of employees in a way which was a pretty clear breach of trust. Friends of mine who were based in New York went to binding arbitration which was stipulated by their contracts of employment. They got a decision in a matter of weeks and were awarded triple damages after a short hearing. Those of us unlucky enough to be in London had to go through the Court system instead (the Employment Tribunal was not available to us). It took us four years to get a final judgment and get paid and we had to cover significant legal expenses through something like five or six hearings at different courts in the mean time. If there had not been a large enough number of us, it would have been ruinously expensive to pursue them simply in terms of the funding cost during the case. We did get back a lot of these costs when they finally gave in and decided not to appeal but we were still left out by something like 20-25% of our costs despite England and Wales being a "loser pays" system (apparently this is normal). Punitive/exemplary damages like our New York colleagues got are effectively non-existent here so we still ended the day worse off than if the employer had behaved well to start with.

The fact is that any judicial process, whether arbitration or traditional courts, has some risk attached to it. Because of this, in any system where there is a meaningful chance that the small party pays - i.e. anything except where your legal advice is being provided pro bono or covered by insurance etc - cost is far more of a limiting factor in actually exercising your rights against a much better funded opponent. To the extent that arbitration gives smaller parties at least a shot at justice, it's MUCH MUCH better than a system which you won't ever use because it's too expensive.

Re: Arbitration is a scourge

[JohnFen]

Arbitration has a huge advantage for individuals though - the cost is very low which significantly promotes access to justice.

Only if the arbitration results in justice. I argue that, by design, it does not when it's used for this sort of thing.

Arbitration only works when the two parties are about equally powerful and the arbitrator is actually independent. With arbitration as people usually encounter it, neither of those things tend to be true.

Arbitration is a scam used to remove even more power from ordinary people.

Just Say No

[Anonymous Coward]

You know Nancy Reagan wasn't really talking about drugs, don't you? I mean, subjectively she was, but she was actually giving you a possible strategy for nearly everything in life.

We are constantly given things to sign, and you're expected to comply instead of reading and thinking. But if you say no and don't sign, what's the worst that can happen? You don't get that job, which you didn't want anyway, since its terms were so egregious? That's not a bad thing.

If someone asks you to sign a contract saying you promise to slice off your balls with a dull, rusty razor, JUST SAY NO. Always hold out for a clean sharp one.

Re:Just Say No

[JohnFen]

I agree with this.

On the one hand, it is easy to say "just don't take the job" -- but that can be too much of an ask if someone really needs the work.

On the other hand, years ago I started editing employment contracts I was given to sign, crossing out the sections that I found unacceptable. Most of the time, the employer agreed to the changes. Sometimes not. But I've never lost the job opportunity by doing so.

Re:Just Say No

[spun]

Half the jobs in the country require you to sign away your right to sue them. Saying "no" to this means cutting yourself off from 50% of jobs. This is a new thing, and we can change it with a law. I think we should make this illegal. After all, if company owners can just decide they are going to stick us with this, then we can decide we aren't going to take it. This sort of thing is why we have a government, so the little guys can band together with other little guys and protect themselves from the abuses of the powerful. I mean, only a sociopath would be for letting the powerful abuse the weak.

Re:Just Say No

[HornWumpus]

If you're going to say no, just write 'I don't agree' on the signature line and hand it across the desk. No reading is common on both sides, HR is clueless. Use it.

The worst that can happen is they notice.

This all presupposes the job is worth taking without the arbitration clause.

Re:Just Say No

[slashrio]

Or sign while adding: 'without prejudice'.

Re:Chock full of incorrect "information"

[Captain Splendid]

Tell us more!

Stop Allowing This

[Anonymous Coward]

The U.S. really needs a law that makes it illegal to restrict avenues of legal recourse within any contract (whether it be explicit or implicit such as a TOS). It should be illegal to have "can't sue us no matter what!" clauses. It's an abuse that is way out of hand. You can't own a house, have a job, buy food, buy a car or pretty much any other necessity without dealing with some scummy company that wants you to sign away your legal rights to do business with them.

Not exactly

[110010001000]

You can still sue your employer in public courts even if you signed a arbitration agreement under certain cases. Clickbait.

Good luck, HR.

[operagost]

I can't even remember if I signed off on a waiver. Do you think your HR department kept a copy? Ideally, it would have been scanned into an archival system immediately.

Now, this doesn't address the immorality of the whole issue, but... arbitration? I've been at my employer for over 10 years. You sure you have proof of that?

Re:Good luck, HR.

[HornWumpus]

HR is clueless. Use it.

When asked to sign updated agreements, tell them 'I'm busy right now, I'll have to get back to you', then never get back to them. At least half the time they will drop the ball.

I don't think it matters what you sign

[mark-t]

Once signed, the agreement strips the employee of the right to take her employer to court for unfairly low pay, termination because of pregnancy, race-based discrimination, loss of paternity or maternity leave, and much more.

I was unaware that you could sign anything that would allow somebody else to break the law.

Don't bother going to court... just file a complaint with regional employment services and let them do all of that for you.

One of my kids did this once, when an employer he had at the time wasn't paying fair wages (he was effectively making people work for about half to three-quarters of what minimum wage was). It took my son a while to get up the courage to do this, and a fair amount of prodding from my wife and myself, because he was really afraid of losing his job, but after he did, things improved a lot where he worked within just a couple of months. Additionally, he received a whole ton of back pay that he was entitled to from the previous year and a half, going back to when he started working there. Also, it's my understanding that the employer did not know which employee had field the complaint with the government.

Re:I don't think it matters what you sign

[Anonymous Coward]

Mark-t gets it (sorry I don't have mod points).

There was a government agency where I used to live that required its hourly employees to work off the clock. Employees who complained were basically told that being a government agency, they were exempt from those rules. An employee filed a complaint with the Feds who came in, calculated an approximate number of hours for each employee for the previous THREE years and forced the agency to pay those employees time-and-a-half for those three years. Not only did the employees get what was legally due them, the agency had quite the incentive to not abuse its employees that way again.

The government doesn't always get it right, but there are some shining examples of successful intervention in the workplace.

Re:I don't think it matters what you sign

[mark-t]

Perhaps I should have been more specific.

I was unaware that you could sign anything that allow somebody to exploit you illegally.

Re:I don't think it matters what you sign

[mark-t]

My point is that for a dispute with your employer when they are breaking the law, you don't bother going to court at all, you just file the complaint with the employment services office, provide whatever documentation you can provide as evidence (which they may or may not actually need, but every bit of proof helps), and let them do all of the legwork. You don't even have to quit or leave your job or anything, and the employer is never told who field the complaint (although depending on the circumstances, they may be able to deduce it). If the employer is found to be actually breaking the law, and the employer *does* figure out which employee filed the complaint, they could find it to be exceptionally difficult to get away with firing that person in retaliation. There are laws that prohibit employers from dismissing an employee for reporting unfair business practices, so an employer that tries this would get hit with an additional penalty.

Re:I don't think it matters what you sign

[mark-t]

As far as signing away your rights, Mandatory Binding Arbitration does allow for some very bad things IF you directly try to sue for stuff like unpaid wages

Which is why you don't bother trying to sue them at all... as I said, you would file a complaint against them with labour services branch of the government, and *THEY* would take them to court, requiring the employer to pay out *ALL* of their employees for any unpaid wages (in addition to the nasty fine they would incur for breaking the law in the first place).

Re:I don't think it matters what you sign

[alexo]

And where did the "government agency" get the money from?
That's right, the taxpayers.

No personal consequences = no incentive.

Re:I don't think it matters what you sign

[Bartles]

If only people supported the same system for cases of sexual assault at universities.

Re:I don't think it matters what you sign

[Bartles]

What happened at her trial?

Re:I don't think it matters what you sign

[tomhath]

Read the linked article, she lost. She had a history of reporting sexual abuse and rape, along with numerous mental problems.

Re:I don't think it matters what you sign

[hey!]

Depends on what you mean by "break" the law. Yes, a contract which contravenes the law is not enforceable. But a contract which renders the law incapable of proper operation is definitely possible.

The problem with arbitration is an inherent conflict of interest: the arbiter is in effect hired by one of the parties in the dispute. If the hiring party is dissatisfied with the result, he will no longer send his business to that arbitration firm.

If a more streamlined system of dispute resolution is desirable, then the government should set it up. Failing that, it should regulate arbitration firms and disbar lawyers who show favoritism when acting as arviters.

Re:I don't think it matters what you sign

[mark-t]

Such a contract could at most only prohibit you from suing them directly, it does not (and can not) prohibit you from reporting a complaint to a government authority for violations of regional labour standards. Presumably, the (not small) fines they would receive for doing so will be a disincentive for them to do it in the first place. If you are legitimately owed money because of unpaid overtime, for example, then you would receive it, because the company will have the employment standards agency on their case until they do.

Re:I don't think it matters what you sign

[hey!]

Your results will vary by state if you turn to state agencies for things like wage theft or discrimination. The statistics for some states are stunning: In Arkansas there 46 per thousand employees will experience wage theft in any given year.

Re:I don't think it matters what you sign

[Ailicec]

I saw an "agreement" that stated that if the company did something illegal, and you blew the whistle, and the company broke the whistleblower laws to retaliate, then you agreed not to sue. I'm pretty sure that would go over like a lead balloon with any judge. The companies might as well try putting clauses like in there, because there's no downside for them. Severability lets them put in various unenforceable clauses and let the court system figure it out. In the meantime it discourages the more timid employees from pursuing a case.

Re:I don't think it matters what you sign

[alexo]

I think you misunderstood the original post that I replied to.
The government agency /was/ the employer.

Re:I don't think it matters what you sign

[slashrio]

Well, did the workers not work for 'the people', that abused them?

Re:I don't think it matters what you sign

[slashrio]

So, people with a past of mental problems can be raped at will... nice (not of course).

Re:I don't think it matters what you sign

[thegarbz]

I was unaware that you could sign anything that would allow somebody else to break the law.

The problem is that your solution only works for strict protected rights, not for contract disputes which don't fall under the cover of "breaking the law". There are many reasons an employee gets screwed which has nothing to with breaking the law.

It should be illegal to sign away the ability to dispute in court for anything in any case.

Re:I don't think it matters what you sign

[mark-t]

The problem is that your solution only works for strict protected rights, not for contract disputes which don't fall under the cover of "breaking the law"

I never once attempted to suggest that it could. I even explicitly said precisely what I was talking about.

Noting that what you think is a problem with my solution being that it only works for the what I said it would solve in the first place isn't really noticing any problem at all. All of the rights that were mentioned above are those that *are* protected by law, so that's why I brought the matter up. Obviously if there were issues that don't have strict legal protection, an employee is on their own in that regard, but that wouldn't be the case with any of the above mentioned matters.

Re:Chock full of incorrect "information"

[Neuroelectronic]

https://en.wikipedia.org/wiki/...

Court

[hackwrench]

So ask the court to find the arbitration clause nonbinding, or that a true meeting of the minds never really took place. If you really want to go to court, there's nothing really stopping you.

You always have a choice

[rsilvergun]

I keep hearing that phrase and it infuriates me. If your employer comes to you with one of these contracts you sign it. And it's been upheld by law since congress passed the Mandatory Arbitration Law this last year (and it was upheld by the Supreme Court). Sure, I can get another job, and likely get another one of these contracts put in my face.

And no, I can't just start my own business. If you don't have capital you can't do that. Most people need money coming in. Heck, 60-80% of us live paycheck to paycheck (depending on how you run the numbers).

And that's before we talk about all decisions made for you. Like our car based transportation system that was built in the 40s, 50 & 60s. Or our healthcare system that was built during WWII. Or if you're under 30 our college system. Or hell your parents.

Ever year I get fewer and fewer choices and get boxed in again and again. Meanwhile the number of times somebody says that stupid phrase goes up. Go figure.

Re:You always have a choice

[bluefoxlucid]

I work from free-market economics a lot, because the market is basically a machine that solves big, complex problems. A lot of people don't like the "invisible hand" argument because a lot of people don't understand how markets work.

This is a good example of not understanding how markets work.

Markets work when there is competition. Competition requires consumers to have options, to have a choice. What we have here is called a false choice: you can choose between the options given, but one of those choices will get you a whoopin'. If the choice is between a less-than-optimal outcome and one which is outright harmful to yourself, you don't have a choice; you have coercion.

When competitors are so inconvenient that a consumer experiences harm selecting from them, competition doesn't strictly exist. Fringe ISPs, for example: if all of the useful, high-capacity ISPs throttle things like Netflix unless Netflix pays a lot of money, Netflix's prices go up and they have a hard time staying in business; meanwhile the ISPs who don't manage to do that are often the ones with service incapable of providing what the user wants, or even incapable of streaming Netflix. Thus, without Net Neutrality, your big ISPs have the power to make Netflix not work or to impact its pricing, fragment its user base, and so forth; and the remaining small hold-outs don't supply a robust consumer market, and may not even be able to provide service adequate for users to stream Netflix. False choice, lack of competition.

The same is true of this runaway arbitration. You can't choose between arbitration and no arbitration, because you're choosing between finding a job and struggling to find a job. With so many employers putting this in their contracts, there's not really a competitive job market offering candidates a way to simply go to employers who provide an acceptable contract; even if there were, once those employers got enough employees to mete the demands of their market, they're no longer hiring, and the rest of the workforce is stuck with either arbitration clauses or unemployment. Again: false choice.

Clearly, the invisible hand of the market is stealing from the cookie jar here, and needs to be whacked with a ruler a few times. We need legal rules preventing this sort of abuse. Markets do many wonderful things and solve many problems; they are, however, subject to the laws of economics, and the basis of those laws is that people economize and thus that those with the power and means to reduce their risks (and thus costs) will use them. Employers will become abusive, and need to be set into their place. This is necessary for our market to stay healthy and continue to do the things we want the invisible hand of the market to do--the things command economy socialists consistently fail to pull off when we put them in charge of a nation.

Laissez-faire capitalists went out of style decades ago because they figured out the invisible hand is self-serving and put the damned thing on a leash.

Re:You always have a choice

[Calydor]

Where I'm from, we have a saying about this 'You always have a choice' nonsense. 'Plague or cholera'. Doesn't matter what you choose, you're fucked.

Re:You always have a choice

[dougg76]

What is interesting is that if people do this, it can fundamentally threaten the US economy; Hell it could even destroy it. The US is completely dependent upon the debt cycle. As a interesting contrast, China has had a problem where they can't get people to spend money / go in debt. It is one of those things that is a good idea for an outlier, but does not work when applied to the general population.

Re:You always have a choice

[houghi]

I had the choice to take insurance from a Sicilian Family business. I once did not pay and I could choose to keep my left or my right knee cap, All my fault. I should not have signed the contract.

Re:You always have a choice

[jsailor]

One of the mistakes people make is not getting a copy of the various employment agreements prior to accepting a role. They find themselves with objectionable terms only after they have resigned from their old job and not too many options since, as you put it, people "need money coming in".

Re:You always have a choice

[bluefoxlucid]

There are no contradictions in the above post.

free market at work

[waspleg]

right guys?? ...

Re:free market at work

[Anonymous Coward]

no you twit, the free market no longer exists. It has not existed for a LONG time.

It's like blaming a doctor for failing to save someone before they even got to the ER!

This is "prevention" of a free market, not its failure! In the same way that Freedom is not free, a freemarket is not free either. You either protect it or let it slip right through you hands... kinda like you are doing now. Playing patsy for big corp by blaming the free market for shit it is not responsible for, like a huge tool!

It's a corporatist system

[HBI]

There's another name for a government that enforces a corporatist system. Take a guess what it is? It's real popular on the streets nowadays.

balance of power

[Dale512]

I remember about a month after the case was decided that allowed it we were brought forms and told that if they weren't signed that week would be your last (2 days or so notice). Unlike many here, I do not work in tech. The balance of power between employee and employer is too far out of sync for any true meeting of the minds. It is a ton easier for the employer to make a change than the employee.

Re:balance of power

[Anonymous Coward]

You all organize together, and YOU DO NOT SIGN>
How hard is this of a concept?

Re:balance of power

[Dale512]

Organically organize workers across 30 operating divisions in under 2 days without any planning, foreknowledge that it was coming, and the strong possibility of being fired for making the attempt? The concept is easy and no one is missing it. The balance of power is still screwed and unworkable.

Sigh.

[ledow]

Repeat after me:

You can't sign away a right.

If you can, it was never a right.

In any civilised country, this stuff just renders the clause null and void if ever challenged, and potentially large tracts of surrounding legalese too.

"This does not affect your statutory rights" is an age-old and totally redundant piece of legalese. Because NOTHING affects your statutory rights, whether they say it or not.

If the US are so daft as to allow "rights" to be signed away, they deserve everything they get from not challenging it from day one.

P.S. Extrapolate the consequences. If you can sign away a right, you can sign away "the right to remain silent". Not just be asked to talk, but actually REMOVE THE ABILITY for you to remain silent. The right to free speech. The right to a private life.

If you can sign away a right, any right, that right doesn't exist as a right, and likely none of the other things called that do either.

Re:Sigh.

[Mitreya]

"This does not affect your statutory rights" is an age-old and totally redundant piece of legalese. Because NOTHING affects your statutory rights, whether they say it or not.

You have a right to not be discriminated against based on your race. I am not sure if you have a statutory right to sue after being discriminated.

Also, I think "unfairly low pay" is not against the law and thus not a right (even if it should be).

Re:Sigh.

[tomhath]

You can't sign away a right.

If you can, it was never a right.

What is the basis of that statement (other than your own personal belief that is has to be true)? Two parties can sign a contract agreeing how to resolve differences, it happens all the time.

Re:Sigh.

[spire3661]

>I am not sure if you have a statutory right to sue after being discriminated.

Doesn't that fall under the First Amendment: Right to petition the Government for a redress of grievances?

Re:Sigh.

[liquid_schwartz]

Slavery.

Any contract involving slavery is null and void.

You must not be familiar with how the divorce courts treat men. Slavery is by gender these days, not by race.

Re:Sigh.

[thegarbz]

Two parties can sign a contract agreeing how to resolve differences, it happens all the time

The fundamental purpose of the courts is to resolve disputes about contracts. In most countries it's not legally possible to sign away the ability to do this.

Re:Sigh.

[bsolar]

The basis is the concept of hierarchy of laws. Laws operate on different hierarchies and a superior law takes always precedence over an inferior one. A contract is goverend by private law, but in most countries most rights are granted at a higher level, so contracts cannot touch them no matter what the parties agree.

Re:News or union sponsored propaganda?

[alexo]

The fact that union shops screw you in one way has no bearing on the finding that non-union workplaces screw you in another way.

Re:That is not how it works...

[mrbester]

Haven't seen the CYA clause, mainly because it is meaningless fluff that is the law anyway, but other than that, yes, an illegal clause is non-binding and should be removed so what you sign has everything you agree to and nothing you don't. If a dodgy clause cannot be removed for whatever stupid reason (which is also illegal) the *entire contract* is rendered null and void.

There are plenty of judgements in favour of the employee about this. That there are so many just shows employers trying to pull a fast one, presumably from the American "you're lucky to be offered a job, lowly peon" attitude this thread is about that has found its way across the pond.

You lost me

[rsilvergun]

but I'm curious since you got modded up. What else would you call corporatism except, well, corporatism?

Re:You lost me

[Known Nutter]

I think the word he wanted was "fascism" but I'm not sure that's entirely accurate as fascism is one among a handful of different types of corporatism.

Re:Chock full of incorrect "information"

[sexconker]

All of it?

Arbitration clauses are only valid for things that are legal and contractually agreed to, if they are valid at all.

You can't use an arbitration clause to stop someone from suing you for breaking laws regarding hiring practices, harassment, murder, etc. You also can't force someone to agree to something under duress. Agreement to an "optional" arbitration clause must be optional, and it must be actual agreement. If you're under threat of being fired or having a recent offer rescinded, then it's likely a sane judge would throw it the fuck out.

Re: What law governs when rights can be forfeited?

[sexconker]

Congress declares war and passes funding for war.
The Commander in Chief of the Armed Forces of the United States of America wages war, regardless of formal declaration or funding.

Re:Pick two.

[sexconker]

Two? In the US for the past decade, one of those three would be a miracle.

That is a very bad idea

[Cajun Hell]

You can't sign away a right. If you can, it was never a right.

I think this is not only a weird and new way to think of rights, but it's a bad one, because it makes rights meaningless. If we were to use your concept of rights, then not a single person in the world would have any rights at all. Rights wouldn't exist.

That's a useless way to define something. It's better to define rights in a way that some can exist, so that the word actually has real-world meaning instead of being some theoretical ideal that no person will ever enjoy.

By having rights be a thing that rightsholders can sacrifice, or trade to one another, you'll have many situations where rights are a real thing and are meaningful. (And bonus: you start speaking the same language as everyone else!)

Within the mainstream concept of rights, I can have the right to possess the money that's in my pocket, and you can have the right to possess a widget that you made, and you and I can trade money-for-widget. But by your concept of rights, no person can own anything since owning something means you're not allowed to trade it!

Within the mainstream concept of rights, someone can have the right to live, and also the right to die. (Though some people would deny the second right, they'd still at least acknowledge that the language allows it to make sense.) But by your idea of rights, you can't have the right to live and die, since exercising one right always infringes the other!

You should rethink rights.

The arbiter is the company's lawyer

[Anonymous Coward]

Hey genius, the arbiter **is** a lawyer, and he is hired by **the company**.

Do you see where this is headed, genius? THEIR lawyer, not yours (because you don't have one) decides the outcome.

You can not sign away your rights

[zerofoo]

Nor can you ask someone to sign away their rights - well - not with the force of law.

Two attorney friends of mine explained this to me - they said "go ahead and sign non-competes, contracts with arbitration clauses, and insurance policies requiring lawsuit threshold".

None have the force of law and none prevent you from exercising your right to bring a civil case against, well anyone or any entity.

A judge might recommend arbitration anyway - not because of the contract you signed, but because the court's docket is so full, you might never get your day in court.

A Simple Answer

[JimSadler]

Simply make arbitration illegal and require a full court action for every case. Oops, I forgot, America can not afford courts.

Mandatory Arbitration Clauses are...

[icejai]

... prohibited in certain provinces in Canada.

This has been challenged in Canadian court several times. I remember reading a judgement handed down by a judge, where he stated (paraphrased loosely) that mandatory arbitration "was against the public good"... or something like that... and allowed class action.

People can't just sign away their rights.

And corporations can't privatize the judicial system.

It's as simple as that really.

You're not breaking the law anymore

[rsilvergun]

Congress passed a law making Mandatory Arbitration legally binding and SCOTUS upheld it. At this point if you want that to change you're going to have to vote people into office who will change it. That means two things:

a. Voting in your primary.
b. Voting for left leaning candidates. Yeah. I said it. Right wing politics hold that personal freedom trumps all. And that means you're free to enter into whatever contract you want. Hence Mandatory Arbitration.

We just did the exact opposite

[rsilvergun]

we enshrined them in laws. Our Congress passed a law making Mandatory Arbitration legally binding and our Supreme Court upheld it.

Don't get too comfy over there though. You're ruling class is watching us and taking notes.

Re:We just did the exact opposite

[ChrisMaple]

Mandatory Arbitration is against the plain language of the U.S. Constitution. The Supreme Court is wrong (surprise, surprise!).

Right to Work and Arbitration

[Anonymous Coward]

Funny thing about Right-to-Work. It is a term that was market-tested to be most acceptable. What it actually does is compel unions to represent workers who are not members and pay no dues. I like to think of it as slavery.

One major role of unions is to negotiate contracts on behalf of workers. When a majority of workers decide that they no longer want to pay dues, per Right-to-Work, the union dissolves. Without a party to negotiate with, management can simply include anything that they want in an offer of employment. That includes an arbitration clause.

One employer offered me a job with terms stating that they could subject my credit to unlimited checks and perform background checks in an unlimited fashion. I walked, but some suckers must have signed.

Re:Right to Work and Arbitration

[dougg76]

I would argue that most white collar workers no longer have a 40 hour work week. Companies just start hiring everyone as exempt / salary and un paid on call.

United States Constitution

[ChrisMaple]

Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Re:United States Constitution

[dryeo]

And who pays for the jury?
Also seems like another amendment that needs a bit of modernizing, $20 was a lot of money back then, a $10 gold piece contained 0.5156 troy ounces of pure gold and even in 1933, contained 0.48375 troy ounces. A silver dollar likewise contained 24.057 grams of pure silver, so over 480 grams of silver.

This is legal?

[Opportunist]

Wow. Just wow.

It kinda makes sense that a lot of work laws around here include the phrase "there is no effective way to waive this right". Meaning your employer can write whatever bullshit he wants to make up in a contract but it's void. This includes crap like this, non-compete clauses broad enough to make you unemployable, work hours and many other things that we take for granted.

Guess the idiots thinking that "we should have more freedoms in our work contracts" should take a lesson from across the pond.

Re:Supply and demand

[ChrisMaple]

The solution to overpopulation is to form large coercive groups?

Unions are based on the principle of violating rights. Such organizations are inherently unable to protect rights.

Re:I am an arbitrator

[Trickster Paean]

Given the way arbitration works, if I do a crappy job on today's arbitration - that means less chance that I will be selected again.

True, but it also means that you have an incentive to please repeat players in the arbitration market.

The ONLY way I get the opportunity to serve as arbitrator in a future case, is to play it straight down the middle, decide the case strictly on the facts and the law, and explain myself in a properly written decision.

But is that really true? I'm sure for some categories of disputes, having a reputation for fairness and honesty will ensure repeat business, because both plaintiffs and defendants have an equal chance of needing services. But that isn't true of many contexts, including the mandatory employment arbitration context.

The repeat player effect exists within the employment arbitration context. Whether the repeat player effect is because of repeat player bias is a hard question to answer, but repeat players (employers) do better than one-shotters (employees) in almost every employment arbitration context. And it creates a structural advantage when one side repeatedly goes through a process, so it has built-in expertise versus its opponents who are essentially going through the process for the first time, every time.

I have no problem with arbitration as a dispute resolution method, so long as it is voluntarily agreed to and negotiated between two parties. I've negotiated arbitration clauses in contracts. Outside of a collective bargaining agreement, or the rare employee that can actually negotiate their employment contract, mandatory employment arbitration clauses are disproportionately and unconscionably tilted towards the employer. And the same is true for consumer contracts that have mandatory arbitration clauses. Companies wouldn't be putting these clauses in their contracts if they did not believe they benefited from them. And they do benefit from them.

Re:Pick two.

[91degrees]

Unless you live in Germany. Norway and the Netherlands both score pretty well on those three as well.

Re:Chock full of incorrect "information"

[torkus]

I don't think you're correct on most of that.

Yes, a contract signed under duress can be invalidated. However an employment contract/agreement is very unlikely to be considered that situation. You have the option to not take the job and thus not sign the contract ... so there's no duress.

A bindind arb clause can't stop someone from suing, however you can very much use it to have the case tossed and referred to binding arb. Yes, this includes employment practices. It does NOT include criminal activities because the gov't prosecutes those and isn't a party to the contract.

Threat of being fired for not signing a contract is NOT a guaranteed out by a judge. Employment at will gives companies (and employees) a ton of leeway for changing job terms or simply terminating people. That generally does not rise to the level of duress, as much as people wish otherwise. You're free to take another job.

Re: What law governs when rights can be forfeited?

[JohnFen]

Congress declares war

Technically true, but there are two facts that make this a moot point.

1) The US stopped "declaring war" in a Constitutional sense quite a long time ago. If I remember correctly, the last time we declared war was WW2.

2) Congress has handed the ability to initiate hostilities to the Presidency. In this, they've abdicated their Constitutional responsibilities and made the President effectively the one who declares war.

Privileged

[p0larity]

Gee, I sure do like the fact that I can negotiate when I get a new job. I never sign arbitration clauses or indemnity clauses as they are presented. At very least I'll strike parts I don't want out and initial them. Usually the lawyer gives me a call if the company wants me bad enough or if they don't, well I don't want to work for them anyway if that's how they deal.

But I can make that negotiation. I think in the US they should be incapable of signing away that right. It should be codified in law. That's just silly.