Did you know that, if your employer sexually harasses you, steals your wages, or discriminates against you when awarding promotions, you may not be able to sue them? If this comes as a surprise to you, you’re not alone.
What is a Mandatory Arbitration Agreement?
Think about all those forms you signed when you were hired. You know – the ones you didn’t read? One of them may have been a mandatory arbitration agreement. Nearly 60 million U.S. workers were hired only after signing mandatory arbitration agreements. Many of those workers, by signing, unknowingly forfeited their constitutional right to a trial in the event they ever become victims. This business practice is rampant; according to a study by the Economic Policy Institute, nearly half of all non-unionized employees are compelled to arbitrate legal disputes with their employers. Companies known to follow this practice include McDonald’s, Starbucks, and Walmart.
What is Arbitration, Anyway?
If you have waived your right to a trial by agreeing to arbitration, you are probably wondering what arbitration is. News and opinion site Vox described private arbitration as a “quasi-legal forum with no judge, no jury, and nearly zero government oversight.” Usually, arbitrations secret proceedings that have practically no oversight. True, arbitration is generally less expensive than litigation. However, in arbitration, an employee is less likely to win his or her case. Plus, when employees do prevail in arbitrations, the award tends to be significantly less than a trial court award.
What is Sexual Harassment Arbitration?
Many forced arbitration provisions even extend to sexual harassment in the workplace. Such sexual harassment covers a wide variety of misconduct and can be perpetrated by the employer, a co-worker, manager, or other company representative. Ideally, no workplace should tolerate sexual harassment, let alone attempt to deal with it in a private setting. As the #MeToo movement has shown, most internal systems fail to properly handle complaints and deal effectively with aggressors. Employers should not tie the hands of victims of any workplace wrongdoing, much less victims of sexual harassment. Employees deserve full access to the courts when they are ready to confront their employer.
Is Mandatory Arbitration a New Problem?
For years, labor advocates have been opposing mandatory arbitration, but the issue did not enjoy much publicity until the #MeToo movement shed light on its role in keeping sexual harassment complaints hidden. Thanks to the #MeToo movement, women are coming forward in record numbers to discuss their experiences with workplace harassment…only to discover they signed an arbitration agreement effectively banning them from the courthouse. Now that so many victims are learning that their employers intentionally deprived them of their right to justice, calls to ban forced arbitration contracts are gaining momentum.
How Can the FAIR Act Help?
Thanks to the hard work of many workers and rights groups, a new proposed bill called the Forced Arbitration Injustice Repeal (FAIR) Act has the potential to outlaw mandatory arbitration in the workforce. If passed, it would ban employers from forcing their employees to surrender their right to sue the company or join together in class or collective actions.
The FAIR Act enjoys tremendous support from groups and individuals. The National Employment Law Project (NELP) issued a statement in support of the FAIR Act, stating that it will hold employers accountable by letting employees decide for themselves whether they want to take their case to court or engage in private arbitration. Individual workers also are banding together to support the FAIR Act. In November 2018, 20,000 Google employees and contractors walked off the job to protest the company’s response to sexual harassment claims. As a result, Google agreed to stop mandating forced arbitration for its workers. Much of the Google workforce, so inspired by the successful protest, joined other workers last February to gather in Washington, D.C. to support the FAIR Act.
Copeley, Johnson & Groninger Supports Victims
Because of forced arbitration clauses in employment contracts, sexual harassment in the workplace has been underreported and excluded from the jurisdiction of the courts. In the private forum of arbitration, victims are often forced to watch their experiences be minimized, discredited, and invalidated. The FAIR Act, if it becomes law, can change this unacceptable business practice. At Copeley Johnson & Groninger PLLC, we support and represent employees who have suffered losses and injuries due to sexual abuse at work, and we support the FAIR Act to ensure victims’ right to full justice.
If victims believe litigation would be effective, they should be allowed to go to court. We will continue to monitor the status of the FAIR Act and support it. To discuss further or to schedule a confidential consultation, contact Copeley Johnson & Groninger PLLC or call 919-646-4220.