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Businesses The Almighty Buck The Courts United States

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.
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More Than Half of American Workers Can't Sue Their Employer

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  • Yup (Score:5, Insightful)

    by Captain Splendid ( 673276 ) <capsplendid.gmail@com> on Thursday September 28, 2017 @03:06PM (#55271747) Homepage Journal
    Another US-invented oxymoron: "Right To Work" laws are anything but. At least all that FREEDOM! balances it out though, no?
    • "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.
      • 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.
      • "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.

      • by 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

    • Re:Yup (Score:5, Insightful)

      by Anonymous Coward on Thursday September 28, 2017 @03:49PM (#55272051)

      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)

        by liquid_schwartz ( 530085 ) on Thursday September 28, 2017 @07:08PM (#55273377)
        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.
        • 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.

        • by houghi ( 78078 )

          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. Th

      • by rtb61 ( 674572 )

        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.

  • It's the only way to get this resolved.
    • 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.

      • 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.

        • 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?

  • by Anonymous Coward on Thursday September 28, 2017 @03:14PM (#55271811)
    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.
    • 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.
      • by dryeo ( 100693 )

        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.

    • by torkus ( 1133985 )

      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.

  • by JohnFen ( 1641097 ) on Thursday September 28, 2017 @03:14PM (#55271813)

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

    • Re: (Score:2, Insightful)

      by 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.

  • by 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

    • 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.

    • by spun ( 1352 )

      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

    • 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.

  • Stop Allowing This (Score:4, Insightful)

    by Anonymous Coward on Thursday September 28, 2017 @03:18PM (#55271853)

    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.

  • by 110010001000 ( 697113 ) on Thursday September 28, 2017 @03:18PM (#55271855) Homepage Journal
    You can still sue your employer in public courts even if you signed a arbitration agreement under certain cases. Clickbait.
  • 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?

    • 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.

  • by mark-t ( 151149 ) <markt@nerdflat.cELIOTom minus poet> on Thursday September 28, 2017 @03:27PM (#55271919) Journal

    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.

    • by 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 t

      • by alexo ( 9335 )

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

        No personal consequences = no incentive.

    • by hey! ( 33014 )

      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,

      • by mark-t ( 151149 )
        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 the
        • by hey! ( 33014 )

          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.

    • 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.
    • by Ailicec ( 755495 )
      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 emplo
    • 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.

      • by mark-t ( 151149 )

        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* pro

  • 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.
  • by rsilvergun ( 571051 ) on Thursday September 28, 2017 @03:40PM (#55271977)
    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.
    • by HBI ( 604924 ) on Thursday September 28, 2017 @03:56PM (#55272105) Journal

      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.

      • but I'm curious since you got modded up. What else would you call corporatism except, well, corporatism?
        • 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.
    • by bluefoxlucid ( 723572 ) on Thursday September 28, 2017 @05:03PM (#55272589) Homepage Journal

      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.

      • You are amazing. I've yet to see you get through a single post without contradicting yourself.
      • by houghi ( 78078 )

        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.

    • by Calydor ( 739835 )

      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.

    • by jsailor ( 255868 )

      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".

  • right guys?? ...

    • by 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!

  • 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.
  • by ledow ( 319597 ) on Thursday September 28, 2017 @04:13PM (#55272229) Homepage

    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.

    • by Mitreya ( 579078 )

      "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).

      • >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: (Score:3, Insightful)

      by tomhath ( 637240 )

      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.

      • 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.

      • by bsolar ( 1176767 )
        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.
    • 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

  • 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 doc

  • Simply make arbitration illegal and require a full court action for every case. Oops, I forgot, America can not afford courts.
  • by icejai ( 214906 ) on Thursday September 28, 2017 @07:02PM (#55273353)

    ... 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.

  • 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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