Arbitration Fairness Act

Forced arbitration is when employees faced with an issue at work are forced to have an arbitration instead of being able to go to court with a fair judge and jury. Often times, as a condition of employment, employers will not hire a worker, or could possibly fire a worker, unless they “consent” to an arbitration clause. Other times it is just assumed that employees agreed to it if they continue to work for their employer after an arbitration policy is announced.

Arbitrators are not judges. They do not need to know the law or have any relevant experience. Even though the arbitrators are not judges, their decisions are final. Also, there are no appeals for arbitrator decisions. They do not have to justify their decisions and the process takes place behind closed doors with no public record. The arbitrators charge parties for their services and often work for the same employer numerous times, tipping the odds significantly in the favor of the employer. One arbitrator and retired trial judge even stated, “You would have to be unconscious not to be aware that if you rule a certain way, you can compromise your future business.”

Continue Reading Arbitration Fairness Act (AFA), H.R. 1873 and S. 987

On Wednesday, March 16, 2011, the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado, issued a decision that reaffirms the rights of union members to sue under federal law. The issue most frequently affects the right of union members to bring claims under Title VII for discrimination on the basis of race, gender, religion and national origin. However, it could also affect claims under federal whistleblower laws. The issue had long been settled that when Congress creates individual rights, then workers could not lose those rights merely because they belong to a union that can pursue grievances through arbitration. The Supreme Court settled this issue in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). In 2009, however, the Supreme Court unsettled this issue with its decision in 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009).

Continue Reading 10th Circuit allows union members to sue after union loses arbitration

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.

Continue Reading Franken Amendment passes both houses of Congress


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On Monday, the Supreme Court granted cert in the case of Stolt-Nielsen S.A. v. Animalfeeds International Corp. The court will determine whether class arbitration is consistent with the Federal Arbitration Act (FAA) when the arbitration agreement is silent on the issue. This case highlights the current legislative drive for the Arbitration Fairness Act, a proposal that would protect consumers and employees from binding mandatory pre-dispute arbitration agreements. The issue is particularly important to whistleblowers who often have no idea about the illegality they will confront at the time the employer requires them to sign such an agreement.

Continue Reading Arbitration Fairness Act and the Supreme Court