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Supreme Court Upholds Workplace Arbitration Contracts
- tneely 8y agoRuling can be found here: https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf
- nathanaldensr 8y agoThis is really, really disappointing. Contracts are supposed to be fair for both sides. In isolation, meaning for one specific purchase or one specific job, they are. But what happens when every company and employer has this language in their contracts? What do they lose by including the language? They lose nothing!
- nathanaldensr 8y agoReplying to myself: Think about how many transactions--i.e., in legal terms, a contract--you participate in every day. Now imagine that every one of those contracts forced on you to essentially give up your access to the court system for resolving grievances with private companies. That's where I believe we're heading, especially now that it seems like the issue has been officially resolved (at least for jobs). It's really scary.
- s2g 8y agoAbsolutely. The 7th amendment is dead.
- koolba 8y agoThis isn't disappointing at all as it reflects the state of the laws as they're currently on the books. Desiring or determining a court ruling based upon what you'd like the law to be rather than how it's currently written opens the door for legislation from the bench. If workers want the law changed to ban arbitration clauses then they should ask their representatives to pass legislation to do exactly that. And if said representatives won't do so then they should elect someone else next election cycle who will.
- giobox 8y agoGiven the US is a common law system, whats "on the books" and "how it's currently written" is only part of the story - precedent established in prior cases is another large deciding factor in what the law "is", and judges have a fair degree of latitude to adapt interpretation in this regard. Interpretation is not static either. > opens the door for legislation from the bench In common law systems, indirectly this is what happens and has done for centuries. Through interpretation of statute and binding precedent, the bench does get to help define, albeit in far more limited fashion than the legislature, what "the law" is in a common law system. This is one reason why lawyers have to examine both the statute _and_ the case law. Disappointing is the right word.
- latortuga 8y agoOkay sure. But don't lose track of reality in your quest for idealism though. There is a vast power imbalance between worker and corporation, both money and power. Businesses control the contracts, they have far more money, and, as a result, they have vastly more powerful lobbying. So in practice, there is no defense for workers anywhere! Kicking the can to "elect someone else" is just as naive as claiming that this decision respects the law on the books.
- gowld 8y agoYour concern is valid, and is the domain of anti-trust law.
- bhups 8y ago> Kicking the can to "elect someone else" is just as naive as claiming that this decision respects the law on the books. But...it does respect the law on the books. Your concern seems to be that the law is bad, and that the judiciary ought to change that law. I don't think there's a lot of disagreement about the former, it's the latter that's more controversial. From an idealistic standpoint, enacting Federal law is necessarily onerous, owing to the requirement of a strong consensus so as to prevent a marginal majority from shoving Federal laws down the throat of a large minority. > Okay sure. But don't lose track of reality in your quest for idealism though. Okay sure, it sounds like you don't care much for the idealistic standpoint, so let's talk pragmatism. If we can't gather this consensus at the Federal level, we have the levers of state legislatures to pass those same laws at a more local level. Liberal states have the political will, the systems, and (if we're being frank) the majority of businesses that would be affected by Federal law anyway. They just need to have the will and pragmatism to compromise and pass their desired law at the state level until such a time that there's Federal consensus for that law.
- rayiner 8y ago> Contracts are supposed to be fair for both sides. That's not really a prerequisite for contracts. Contracts will often reflect substantial negotiating leverage on one side versus the other (e.g. a contract for sale of a house where the seller just lost his job, or a contract for sale of stock where the seller really needs money due to an unforeseen emergency). That's not a reason not to enforce them.
- rocqua 8y agoAFAIK there are limits to that. Certainly, contracts are required to be reciprocal. That is, one cannot write a contract that states A gives stuff to B, without requiring B to give some form of compensation. This is why things are sometimes sold for $1 rather than gifted. I think there are also 'no contracts can be made under duress' clauses that limit how much one can use leverage to unbalance a deal. Not sure what kind of limits there are to that though.
- emaginniss 8y agoThat's called "consideration" and it's to prevent a contract where only one side is being obligated to do something.
- s73v3r_ 8y agoExcept the court has also ruled that simply keeping your job is sufficient "consideration".
- Karishma1234 8y agoThe verdict seems very consistent with the existing laws while many believe it is unfair. But these are two separate things. Workers should petition their representatives to pass laws that will help them bring fairness and the courts will then have to look at the issue freshly. > But what happens when every company and employer has this language in their contracts? What do they lose by including the language? They lose nothing! That is not true. Arbitration does not come free and not necessarily always in favour of the employer either. Which of the following would you prefer ? 1. Pay a monthly fee of $25 and whenever you get a traffic ticket you don't have to pay it 40% of the times. 2. Pay a traffic ticket only if you get it. Every single car I have purchased made me sign similar agreement and I know at least one car dealer who got sued and lost pretty badly.
- Analemma_ 8y ago> "not necessarily always in favour of the employer" You're not really helping your case here if this is the strongest statement you can make in arbitration's favor – "you're not necessarily fucked!". The New York Times ran a series about binding arbitration a while back, and a running theme was that arbitrators who repeatedly rule in favor of individuals quickly find themselves getting no more business, as you'd expect. Thus, the incentives of arbitrators are strongly skewed to favor employers (even if not at the individual level, then definitely at the ecosystem level via selection pressure) and I don't believe for a microsecond that their decisions are fair and reasonable.
- s73v3r_ 8y ago"The verdict seems very consistent with the existing laws " How can it be consistent with existing laws if the laws never mentioned arbitration at the time?
- secabeen 8y agoWould it work to ban required arbitration agreements in contracts of Adhesion? That seems like a nice, simple solution.
- dctoedt 8y agoPurely as a matter of statutory construction, Ginsburg's dissent seems better reasoned.
- notyourday 8y agoHer dissent is "I wish I could write legislation from a bench and darn we don't have enough on our side". It is great that SCOTUS is starting to uphold the laws as they are on the books. Frankly, the idea that not legislators but the courts get to write the laws should be abhorrent. Courts need to stick to "is this law contradict other laws and hence is invalid" decisions. Want to change the law? Get congress and senate to pass a new law and have a president sign it.
- Bartweiss 8y agoThis seems like a particularly weird place to lay charges of activism. The majority decision claims "It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935." That's either an activist position or an original intent position; it relies on comparing circumstances today to the circumstances Congress is presumed to have had in mind. The Court's current originalists are textualists to a man, and have consistently rejected arguments of the form "this law's authors didn't anticipate modern conditions". But today, they decided to restrict a right provided by the text of the law, and did so by appealing to circumstance and intent. (edited for clarity) Legislation was written from the bench today, and it wasn't Ginsburg doing it.
- Someone1234 8y agoTime to pressure congress to change this. A lot of people see SCOTUS decisions and think the matter closed, but congress with the flick of a pen could completely ban arbitration for employee contracts. The employer/employee relationship is by its nature power imbalanced. If employers band together and all require arbitration (as they likely will via a standardised templated contract) employees cannot do much.
- mars4rp 8y agoWhen was the last time Congress did something for the people against corporations?
- e40 8y agoA long, long time. Sadly.
- VikingCoder 8y agoCongress did things for people all the time: Making it marginally easier for those with means to save some money by reducing their taxes... because they took away some essential service from those without means. Which "helps motivate" the people without means to stop being so lazy. /s
- gowld 8y agoHere's a 2010 data point: https://en.wikipedia.org/wiki/Consumer_Financial_Protection_Bureau https://en.wikipedia.org/wiki/Consumer_Financial_Protection_...
- imglorp 8y agoAnd a 2018 data point: https://www.reuters.com/article/us-usa-equifax-cfpb/exclusive-u-s-consumer-protection-official-puts-equifax-probe-on-ice-sources-idUSKBN1FP0IZ#ref https://www.reuters.com/article/us-usa-equifax-cfpb/exclusiv... So it used to be okay but in the new climate, CFPB has been gutted and is now the Corporation Financial Protection Bureau.
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- fhayde 8y agoFrom https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf > It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935. Kind of funny they use this as justification considering everything else they've upheld that was adopted decades prior to this without knowledge of modern custom or technology. Convenient argument when it's serving their purpose.
- gefh 8y agoYeah, I can't see them overturning the 2nd amendment even though the same logic applies.
- rayiner 8y agoYou're mixing up two different things: does the new thing fall within the old language, and would the drafters have used different language had they known about the new thing. Is a semi-automatic rifle an "arm" as the term was understood in 1789? Yes, almost certainly, in the same way an aircraft carrier is a "ship" as the term was understood in 1789. If semi-automatic rifles had existed in 1789, would the framers still have used "arms" as they did? Maybe, maybe not, but that's irrelevant. We don't care about what they thought, just what they wrote. Likewise, is a class action "concerted action" as the term was used in 1935? Probably not. Would the drafters of the NLRA have wanted class actions to be protected had those been common in 1935? Probably yes, but that's again irrelevant.
- aaronbrethorst 8y agoWe don't care about what they thought, just what they wrote. Uh, who's "we?" It sounds like you're describing textualism or strict constructionism, which are two of many types of judicial interpretation. https://en.wikipedia.org/wiki/Judicial_interpretation https://en.wikipedia.org/wiki/Judicial_interpretation
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- rocqua 8y agoHow do arbitration clauses compare to 'no sue' clauses. By the second I mean contracts that state one party shall not sue the other for a given thing. As far as I know, 'no sue' clauses are unenforceable. It seems to me that arbitration clauses prevent workers from suing their employers which would essentially be a 'no sue' contract. I don't think the courts would miss this, so I am probably wrong here somewhere. Would anyone care to correct me?
- djsumdog 8y agoI'm curious about this too. I thought arbitration clauses meant that for the conditions listed in the contract, you have to go through arbitration and wave your rights in going through the courts.
- s2g 8y agoTime for the big tech companies to double down on their no poaching/wage fixing agreements.
- Karishma1234 8y agoThis is indeed a great verdict. It was 5-4 decision with all 5 conservative appointed judged voting in favour. Had Hillary won elections it would have been other way round.
- gowld 8y agoAlso might have gone the other way if the Congress hadn't unconstitutionally held a Court seat vacant in 2016.
- TheCoelacanth 8y ago"The rule of law no longer applies in the workplace." - SCOTUS
- bitbang 8y agoPerhaps open-source software licenses should start including a stipulation that anybody using open-source software in any product they produce or consume, must submit to arbitration for any software patent suits.
- loteck 8y agoFor those living in California, this issue of requiring arbitration contracts in the pre-employment stage is under consideration from the state legislature, and the bill has some heat on it. This bill would prohibit an employer from, as a condition of employment or as a condition of entering into a contractual agreement, prohibiting an employee or independent contractor from disclosing to any person an instance of sexual harassment that the employee or independent contractor suffers, witnesses, or discovers in the workplace or in the performance of the contract. The bill would also prohibit an employer from requiring any applicant for employment or prospective employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (FEHA) or other specific statutes governing employment, as a condition of employment, continued employment, or the receipt of any employment-related benefit. The bill would also prohibit an employer from threatening, retaliating or discriminating against, or terminating any applicant for employment or prospective employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of specific statutes governing employment. The bill would establish a specific exemption from those prohibitions. Because a violation of these prohibitions would be a crime, the bill would impose a state-mandated local program. https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB3080 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtm...
- djsumdog 8y agoAnother thing that makes me want to move to California. CA laws ban non-compete agreements with the state and there seems to be a tremendous amount of laws geared to protect the employee.
- s73v3r_ 8y agoUnfortunately, it seems like it only would ban the arbitration requirement in the case of sexual harassment or the like.
- JTbane 8y agoSeems like a net loss for workers of all kinds.