Sen. Al Franken’s amendment to bar use of mandatory arbitration agreements by defense contractors has now passed both houses of Congress. Franken introduced his amendment in response to Halliburton/KBR’s treatment of Jamie Leigh Jones. When Jones was 19, she began working for a Halliburton subsidiary, and had to sign employment papers that she did not understand. One of those papers contained an arbitration clause that required her to use arbitration, instead of a court or jury trial, for any claims arising from her employment. In Baghdad, Iraq, her KBR co-workers drugged and raped her. Halliburton confined Jones in a storage container without food or water until a guard allowed her to borrow a cell phone. Her call to her father prompted State Department action to get her released. Halliburton also took possession of the rape kit administered by a U.S. Army doctor. Halliburton held it for two years and it was damaged when finally recovered.
Halliburton has stalled Jones’ lawsuit for rape, sexual harassment, wrongful imprisonment and other claims by using its pre-employment mandatory arbitration agreement. Sen. Franken’s amendment would prohibit big defense contractors from using pre-dispute mandatory arbitration agreements with their employees in Title VII discrimination claims, or in tort claims for sexual assault and harassment, wrongful imprisonment, negligent hiring and some other claims.
In October, the Senate passed the Franken Amendment by a vote of 68 to 30. This week, a House-Senate Conference included the Franken Amendment in the final Defense Appropriate bill. That bill has now passed the House by a vote of 395 to 34. Early this morning the Senate passed a cloture vote, by 63 to 33, clearing the way for final Senate approval.
With this Congressional affirmation of and employee’s right to seek redress in court, it is now time for Congress to pass the Arbitration Fairness Act (AFA), H.R. 1020 and S. 931. With the AFA, no employer could take away an employee’s right to go to court. Please check how your legislators voted with the links above. If they voted yes for the Franken Amendment, thank them and ask them to co-sponsor the AFA.
The full text of the final Franken Amendment is available here from MinnPost.com. Here is the main text:
SEC. 8116. (a) None of the funds appropriated or otherwise made available by this Act may be expended for any Federal contract for an amount in excess of $1,000,000 that is awarded more than 60 days after the effective date of this Act, unless the contractor agrees not to:
(1) enter into any agreement with any of its employees or independent contractors that requires, as a condition of employment, that the employee or independent contractor agree to resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention; or
(2) take any action to enforce any provision of an existing agreement with an employee or independent contractor that mandates that the employee or independent contractor resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.
The amendment has a provision to cover subcontractors after 180 days from the Act’s effective date. It also has exceptions for contracts that may not be enforced in U.S. courts, and for contracts certified by the Secretary of Defense as needing the exception for national security.
Sen. Franken issued the following statement about the conference report:
“Jamie Leigh Jones is a strong, courageous woman, who used her own horrific experience to inspire change. I am honored to know her, and honored to have been a part of her cause. I came to Washington to stand up for folks like Jamie Leigh, and stand up to the powerful interests that too often silence their voices. I was gratified to see so many of my colleagues in Congress and so many national civil rights leaders join in this effort. The Jamie Leigh Jones amendment is on its way to becoming law thanks to their work, the work of Chairman Inouye, and the work of the White House. I’m pleased that together, we were able to find a solution that allows victims of assault and discrimination their rightful day in court.”
Cora L. Ganzglass of the National Association of Consumer Advocates (NACA) and Donna Lenhoff of the National Employment Lawyers Association (NELA), deserve thanks for tireless work in advocating for this amendment.
President Obama has now signed the Defense Appropriation Act into law. Here is a link to the Legal Times article about the Franken Amendment becoming law.