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U.S. states reconsider confidential deals in workplace harassment
- siruncledrew 8y agoMore context on the bill: 1. https://www.sacbee.com/opinion/editorials/article211839964.html https://www.sacbee.com/opinion/editorials/article211839964.h... 2. http://www.dailyfreeman.com/article/DF/20180826/NEWS/180829787 http://www.dailyfreeman.com/article/DF/20180826/NEWS/1808297...
- NonEUCitizen 8y agoDoes it invalidate such provisions in your already-signed existing employment agreement with your current employer?
- petermonsson 8y agoIANAL, but the introduction says yes
- kurthr 8y agoIANAL, but my understanding is that it makes it a crime for the employer to enforce the provision which prevents them from suing for it in civil court.
- boulos 8y agoSadly, at least some of it only applies from Jan 1, 2019 onwards: > (b) This section applies to contracts for employment entered into, modified, or extended on or after January 1, 2019.
- Animats 8y agoThat's just how California does non-urgent law changes. They turn on at the beginning of the next year. Newspapers often publish a list of new laws becoming effective on January 1.
- SamReidHughes 8y agoNo, that also avoids a big question about the law's constitutionality under the contract clause.
- bdonlan 8y ago> 432.6. (a) A person shall not, as a condition of employment, continued employment, the receipt of any employment-related benefit, or as a condition of entering into a contractual agreement, require any applicant for 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 (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code) or this code, including the right to file and pursue a civil action or a complaint with, or otherwise notify, any state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity of any alleged violation. > [...] > (f) This section applies to contracts for employment entered into, modified, or extended on or after January 1, 2019. So, note that arbitration could still be mandated for violations of your employment contract, but not for litigation concerning employer violations of the California Fair Housing and Employment Act. If your employment contract has a defined end date, then renewal of that contract after 2019 will be under the provisions of this new law. For ones that don't have a defined end date, I'm not clear on whether they could be considered continually extended, or if it would just be a grandfathered-in contract.
- deleted 8y ago[deleted]
- User23 8y agoMy employer sent me a form asking me to sign on to an arbitration agreement for my already existing salaried job a year or so back. I considered saying sure, so long as you're willing to offer me an employment contract, but eventually I decided to ignore it. Looks like that's moot now.
- DannyBee 8y agoThis is the problem with passing laws that directly conflict with federal law - it makes people think, like you do, that these issues are moot, when that's wrong.
- DoreenMichele 8y agoIt also frequently gets resolved by a case making it to the Supreme Court. State laws are not supposed to conflict with federal law.
- jkaplowitz 8y agoIf I'm not mistaken, SCOTUS recently ruled that the FAA lets employers force arbitration on their employers. (Simplifying slight for the purpose of a snappy comment, but this California law may not be fully valid.)
- User23 8y agoExcept for the evident marijuana exception.
- DoreenMichele 8y agoYes, a large scale movement can challenge federal law. It starts by passing laws at the state level. In a case like that, they are sort of hoping it goes to the Supreme Court and the court finds in their favor. One of the issues marijuana growers and sellers are having is that they have trouble establishing bank accounts because banks don't want to be in violation of federal regulation. The people passing pro mj laws and starting legitimate mj businesses could be viewed as a quiet, non violent civil rights movement. Everyone doing stuff in that space is sticking their neck out. I'm allergic to mj, so I'm not willing to stick my neck out, but I am for the legalization of mj. I have done some research on the topic and I have tremendous respect for the people quietly working to make this legal in the US.
- Pinckney 8y agoThis is likely to be struck down, as it conflicts with the FAA https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/california-arbitration-bill-sexual-harassment.aspx https://www.shrm.org/resourcesandtools/legal-and-compliance/...
- rayiner 8y agoMaybe. To the extent a case involves a purely intra-state contract (e.g. your typical employment contract), it might be viable. I’d argue it’s unconstitutional to apply the FAA to a preempt state contract law that has purely intra-state effect.
- DannyBee 8y agoIf they force california companies to do this to out of state employees, for sure they'd lose that argunment. The interesting provision of the FAA is this one: " but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."
- marcoperaza 8y agoThere was a case about that provision, Circuit City v. Adams, and it was held that it only works to exclude transportation workers from the FAA. By the legal maxim ejusdem generis, a catch-all provision, like "any other class..." here, is generally interpreted to only include things of the same kind as the previous items in the list. Edit: I had some commentary about the case here, but upon a closer read of the majority and dissenting opinions, it's really not as clear cut as I thought. There's plenty of good reasons to agree or disagree with what the Court did in Circuit City.
- DannyBee 8y agoThanks. I was just too lazy to look for precedent on it.
- 8y ago
- partycoder 8y agoThe point of arbitration is to settle a problem with the help of a trusted, neutral 3rd party. Forced arbitration does not seem as neutral.
- DannyBee 8y agoCourts force mediation as well. For example, a lot of states now force mediation in family law cases. They would (and should) force arbitration if they could. (The vast majority of these cases are people failing to act like reasonable adults, not serious legal issues) It depends a lot on the situation.
- YokoZar 8y agoIn such cases the court would determine the arbiter, not the company.
- DannyBee 8y agoIn most cases, which follow JAMS rules (even when not done by JAMS), the companies do not name the arbiter. See https://www.jamsadr.com/rules-comprehensive-arbitration/ https://www.jamsadr.com/rules-comprehensive-arbitration/ Rule 15. (This is true even when, as in most cases, the company pays for arbitration)
- dd36 8y agoThe issue is usually information asymmetry. A repeat player has better information. That’s why we built https://levelplayingfield.io https://levelplayingfield.io
- mindslight 8y agoWhat I don't understand is that if arbitration has any of its purported merit, then why can't both parties just agree to enter into binding arbitration at the time of a dispute - when it would be worthwhile to actually research whether it makes sense? I do understand this would leave the possibility of expensive court still on the table. But the alternative seems to undermine the very concept of a contract, by asserting that one party has an ability to unilaterally choose the interpreter of the words. As in: "I'll give the first person who responds to this comment $20", but only per my chosen interpreter. (And I choose /dev/null)
- SamReidHughes 8y agoI don't see it banning non-disparagement clauses. Only aspects pertaining to sexual harassment.
- KirinDave 8y agoSorry, I didn't have room in the title. I think you're right: non-disparage agreements are null in the face of sexual harassment lawsuits but in other cases don't seem to be affected. Forced arbitration seems to be unenforceable in all cases.
- yuhong 8y agoThat being said, I have been thinking about Yishan-style CEOs for a while now.
- mindgam3 8y agoCan someone modify the title to simply "California bans forced arbitration"? "No-disparge" is a typo, but more importantly I don't see any mention of non-disparagement clauses in the bill itself. IANAL but it appears to be 100% related to banning forced arbitration. [Edit] Also, the news articles referenced in a comment below make no mention of non-disparagement clauses, only forced arbitration.
- jobigoud 8y agoThere is some mention of non-disparagement on the "bill analysis" tab. At least in the Office of Senate Floor Analyses, haven't looked at the others.
- telltruth 8y agoThis is good start towards striping power of employers to become judge and the jury by exercising their "at will" clause. I would still like to see: 1. Prohibiting employers to punish employees for exercising their free speech outside of the work (right of free speech). 2. Prohibiting employers to punish employees for alleged wrongdoings outside of the work (right of due process).
- TheAceOfHearts 8y agoA bit tangential, but I think services which include an arbitration clause should be forced to display it up front in plain language during registration and get clear confirmation from the user, and it should be strictly opt-in. Ever since GDPR became a thing I started reading the Terms of Service of every major site I use. Yesterday I found out my Starbucks account has a forced arbitration clause which you can only opt out of by sending a physical letter to their headquarters, and only if you do so within 30 days of having signed up. This is customer abuse at its finest, and should definitely not be legal. If I can sign up online I should be able to opt-out online, at least. Even worse is their linking policy, which I cannot imagine is actually legally enforceable. How can linking to a publicly accessible page have terms associated with it? And the terms are incredibly user-hostile, since it basically says you can't link to them if you're saying anything bad or negative about the company. I'd normally include a link, but I guess you'll have to search for it yourself if you want to confirm what I'm saying. Just look up "Starbucks Terms of Service", it'll be the first result ;).
- pluma 8y agoA lot of contracts (especially ToS) are just throwing stuff at a wall to see what sticks. I've yet to see a ToS or EULA that's 100% enforceable in the EU and I'd be surprised to hear they're 100% enforceable even in the consumer-hostile, corporation-friendly US. An overeager ToS is a good way to scare people who are unwilling to risk a legal dispute. In practice a lot of the more preposterous clauses are nonsense.
- rectang 8y agoIt doesn't matter if the nonsense provisions are ultimately enforceable, so long as they're credible enough to be litigated. The courts provide a battlefield where the army of company lawyers will fight you in a lopsided war of attrition that ends with your financial ruin. Might makes right.
- evandijk70 8y agoSeems like there should be a fine for putting unenforcable clauses into contracts to discourage this practice
- jkaplowitz 8y agoThis seems like the Federal Arbitration Act might at least partly pre-empt it. But I wonder why no legislature has taken advantage of the limited scope of the FAA? Specifically, it only pertains to the enforceability of contracts, but not other disincentives. For example, a state could raise its corporate income tax rates, but as a separately severable provision, give a tax credit reversing X% of the tax hike if X% of their employees have no restrictions on their ability to publicly litigate and disclose harassment and discrimination claims. (Many variations on the specifics are possible.) If companies drop these restrictions, it's no extra tax for them and just a few extra lines to complete on a tax form. Alternatively, if companies keep these restrictions, there's no conflict with the FAA, just a financial penalty. And if they get the tax credit provision struck down somehow, they keep the tax hike regardless of their employment legalese, so they may not want to fight that battle. What major flaw am I missing? Just the optics/PR around this politically speaking, or something worse?
- Retric 8y agoIt’s arguable that that is a fine on allowed behavior. Consider somone charging 10,000$ per month rent, but giving white people a 9,000$ discount would clearly be illegal.
- toxik 8y agoI don’t understand how this connects to racism.
- Retric 8y agoSwap block for disabled if it helps. The point is if it’s illegal to charge more for some group, it’s also illegal to give people discounts because they are not in that group. Aka, Charging X more is equivalent to giving everyone !X a discount while excluding X from the standard discount.
- toxik 8y agoYou can give benefits to the disabled. You cannot simply switch disabled with whites and say that because a transmutation of the practice is racist, so is the practice. The original proposal was for corporations, who are not capable of being discriminated against.
- robaato 8y agoSlightly off-topic, but this article shows what has been tried in some NDAs: https://www.theguardian.com/film/2018/aug/26/former-weinstein-assistant-urges-ban-contracts-silence-harassment-victims https://www.theguardian.com/film/2018/aug/26/former-weinstei... The clauses attached to the Weinstein agreement signed by Perkins offer an insight into how egregious some NDAs can be. She was prohibited from even obtaining a copy of the agreement – she could only look at it supervised at a law firm’s office, a clause that also prevented MPs from acquiring the document. Ultimately she obtained the agreement in June through a personal data request. Its contents confirmed that she was banned from talking to a doctor, therapist or psychoanalyst about Weinstein’s alleged harassment unless they also signed an NDA and that she should not speak about the payment even if HMRC questioned her about it. “If a therapist, for instance, broke the agreement, I would be held responsible for their disclosure. There were guns pointed from every angle,” said Perkins, who has since managed to rebuild her career as a successful associate producer.
- raverbashing 8y agoI really would like to see how banning health care professionals from knowing about a case would fly on the courts (though being in the US you never know). Also how do you prove it? They're under patient confidentiality laws. Still makes me think Weinstein deserves what has come to him.
- acdha 8y agoI don’t think they especially care about having a perfect court case so much as making the prospect of a lawsuit so intimidating and expensive that it’s never tested. It’s sleazy abuse of the system but I’m sure it’s effective.
- pimmen 8y agoIf the judge doesn't throw out the suit and decides to try it, because of that clause alone, the feeling of dread and despair that poor woman would go through is more than enough harm caused.
- AnthonyMouse 8y ago
- emodendroket 8y agoI am impressed. Great move.
- dragonwriter 8y ago“In employment”: forced arbitration and non-disparagement clauses are in contracts in other domains as well. Also, not yet law; the status on the bill is enrolled, which means it has past both houses of the legislature but not been signed by the governor. Presumably, Brown will sign and not veto this, but that's just a reasonable assumption about the future, not the state of the law.
- grosjona 8y agoI was reading about non-disparage clauses and I find it disturbing that these clauses are allowed to override a law as fundamental as free speech. It's disturbing that the US needs to make new laws just to reaffirm the validity of some of its oldest, most fundamental laws. Doesn't that in itself reduce the credibility of all laws? Maybe the real problem is that the justice system is not doing its job properly.
- throwaway2048 8y agofree speech in terms of the 1st amendment is about _government_ restrictions on free speech, the law is mostly totally silent on private agreements or arrangements. This is a fundamental distinction that is missed entirely in way too many online conversations.