In a tight labor market employers are doing everything they can to keep employment costs down but in the process they have removed the last vestiges of worker protections. by Bill Gee
(centrist)
Friday, June 3, 2011
In the first column that I wrote on this topic, I briefly mentioned the insidious nature of "At Will Employment" as a tactic that employers use to instill a culture of fear in their employees. After all, if an employee feels as though they can be fired at any time for any reason, then they will be more willing to tolerate and/or remain silent about clear ethical and financial misconduct of their bosses or the company as a whole. But what happens when the ethical or criminal violations are directed against the employee themselves? What recourse or remedy can an employee, who can be fired for whatever reason, seek?
Title VII of the Civil Rights Act of 1964 bars discrimination on the basis of race, color, sex or national origin. Since the Acts passage, the courts have expanded Title VII protections to also include sexual orientation and it has also added harassment to the definition of discrimination. (Barnes v. Train, 1974) Therefore, if an employee feels as though they are either being harassed by their boss or they were fired for any reason under Title VII of the Civil Rights Act, they have the right to hire a lawyer and sue their boss or employer in Civil Court, right?
Mandatory Arbitration
In an effort to reduce the overall number of cases filling up Court dockets across the country, employers started to employ in-house arbitration panels to resolve employee complaints. These were so successful that soon employers started to make arbitration mandatory for all new hires.
Employers routinely require employees to enter into pre-employment contracts wherein the employee gives up the right to pursue any claims against the employer, including Title VII and other statutory claims. These are largely "take it or leave it" employment contracts and the employee has little to no bargaining power. Often, the signing of a mandatory arbitration agreement is a condition of employment, and in some cases, it is included in the employment application. Applicants who are limited in employment options are essentially required to sign such agreements. (Source: Landry & Hardy, 2008, MANDATORY PRE-EMPLOYMENT ARBITRATION AGREEMENTS: THE SCATTERING, SMOTHERING AND COVERING OF EMPLOYEE RIGHTS, UNIVERSITY OF FLORIDA JOURNAL OF LAW & PUBLIC POLICY, Vol. 19)
The practice of mandatory arbitration was upheld by the Supreme Court in Gilmer v. Interstate/Johnson Lane Corp. (1991), which has since created an entire industry of arbitration panels across the country. With the expense of a single in-court litigation easily costing millions of dollars, it is no wonder why employers have embraced the arbitration process in order to resolve employee disputes.
How it Works
Let us say that something happens at work that you believe violated your Title VII rights. Let us also say that what happened was the result of a direct action by one of your superiors and this action had an adverse effect on your ability to do your job effectively.
If you signed a Mandatory Arbitration Clause in your employment contract, you have no choice but to schedule a hearing for binding arbitration. Larger companies have in-house arbiters who tend to be lawyers who are on the same payroll you are. Smaller companies usually hire an arbitration firm or they have one available on retainer. At the meeting, you explain your side of the argument and your boss gets to explain their side. In the end, the arbiter makes a ruling that is binding on both sides. Both you and your boss have already agreed via the contract that whatever the arbiter decides cannot be appealed and you have already agreed to not take your case into the court system. The only loophole available to you to sue in the civil court system is if other people in your office have suffered the same injustice and therefore you can present yourselves as a class. Unfortunately, this loophole may have just been closed by the Supreme Court in April. (ATT Mobility v. Concepcion, 2011)
Another problem with Mandatory Arbitration is that the Rules of Evidence traditionally observed in the civil and criminal courts are generally ignored. Under traditional rules of evidence, both sides are obligated to share any and all evidence they have gathered to build their case prior to the hearing date. That way, both sets of attorneys can examine each case and decide on the best defense. In arbitration, your boss is under no obligation to provide you with the evidence against you prior to the hearing, which gives you no chance to mount a reasonable defense. Since employees are often representing themselves, they generally have no idea how to legally defend themselves if the evidence presented by their bosses are misinterpretations of actual events or outright lies.
Powerless
Your boss may be a wonderful person and a joy to work for. You may find that your company does good work and that you enjoy coming to work each day. But the Civil Rights Act was designed for those firms where this is not the case. According to Susan Antilla, the culture of sexual harassment is still alive and well on Wall Street and that arbitration is partly to blame for that. When you feel as though your dignity and your rights are being compromised at your job, and you have already signed away your ability to receive a fair hearing, what options are left to you? If you quit, you will not be eligible for unemployment compensation. If you take your boss to the company arbiter, you may have just made a bad situation worse. If you manage to find enough other victims to form class, you may find your case thrown out in appeal.
In the end, if you want to continue paying your bills, you will just take the abuse, do what you are told, and keep your mouth shut.
Take Your Power Back
Your other option is to take your power back. Use the blogosphere to tell your horror stories and join movements that will work to end this culture of wage slavery that feeds the power of the Corporate Ruling Elite.
Believe it or not, we are in the majority and their days are numbered now that "We the People" are onto them.
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The views expressed
in this article are those of Bill Gee only and
do not represent the views of Nolan Chart, LLC or its affiliates.
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Posted By: Jahfre Fire Eater
Date: June 9, 2011 09:01:42 AM
Hi Bill,
I just wanted to offer one additional suggestion in addition to blogging, joining 'movements' and such, there is also something known to most non-libertarians as constructive political behavior...I'm just saying...One's actions should be aligned with their stated goals...not aimed at pacifying or amplifying personal outrage through politically pointless herd behavior.
-Jahfre Fire Eater
