More Than Half of American Workers Can't Sue Their Employer (qz.com) 171
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.
Yup (Score:5, Insightful)
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Which is why I began my sentence with "Another", as in "in addition to". Could have been clearer, though.
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"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.
Right to Work and Arbitration (Score:2, Informative)
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
Re:Yup (Score:5, Insightful)
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 (Score:5, Insightful)
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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.
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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... [atpe.org]. 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.
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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.
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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?
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You may have to re-calibrate your irony detector.
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With the crazy opinions some people have these days, it's getting seriously hard to tell. Poe's Law is in effect.
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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
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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.
We should sue them (Score:2)
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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 (Score:2)
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.
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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. (Score:5, Insightful)
United States Constitution (Score:2)
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.
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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.
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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.
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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.
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Arbitration is a scourge (Score:5, Insightful)
Arbitration is a scourge designed to deny you your legal rights. It only works properly when there isn't already a power imbalance.
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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.
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I never thought of it in those terms, but you're right. That's precisely what it is.
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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 em
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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 (Score:1)
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
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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.
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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 o
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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.
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Stop Allowing This (Score:4, Insightful)
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 (Score:3)
Good luck, HR. (Score:1)
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?
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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 (Score:5, Interesting)
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.
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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 t
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And where did the "government agency" get the money from?
That's right, the taxpayers.
No personal consequences = no incentive.
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I think you misunderstood the original post that I replied to. /was/ the employer.
The government agency
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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,
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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.
You're not breaking the law anymore (Score:2)
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.
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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.
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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* pro
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Perhaps I should have been more specific.
I was unaware that you could sign anything that allow somebody to exploit you illegally.
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If only people supported the same system for cases of sexual assault at universities.
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What happened at her trial?
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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
Court (Score:1)
You always have a choice (Score:5, Insightful)
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.
Comment removed (Score:5, Insightful)
You lost me (Score:2)
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Re:You always have a choice (Score:5, Insightful)
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.
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There are no contradictions in the above post.
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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.
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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".
free market at work (Score:2)
right guys?? ...
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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!
balance of power (Score:1)
Sigh. (Score:3)
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.
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"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).
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Doesn't that fall under the First Amendment: Right to petition the Government for a redress of grievances?
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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.
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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.
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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.
That is a very bad idea (Score:2)
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
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A Simple Answer (Score:2)
Mandatory Arbitration Clauses are... (Score:3)
... 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.
We just did the exact opposite (Score:4, Insightful)
Don't get too comfy over there though. You're ruling class is watching us and taking notes.
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This is legal? (Score:2)
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.
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https://en.wikipedia.org/wiki/... [wikipedia.org]
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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
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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 b
Re:News or union sponsored propaganda? (Score:4, Informative)
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.
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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 o
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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.
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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.
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Two? In the US for the past decade, one of those three would be a miracle.
The arbiter is the company's lawyer (Score:1)
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.
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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.
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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 p