6 ms·

It's absurd that you can actually waive any of your legal rights... Seriously, this is bonkers. After the #MeToo movement revealed that forced arbitration has

by Aqua 8y ago

It's absurd that you can actually waive any of your legal rights... Seriously, this is bonkers. After the #MeToo movement revealed that forced arbitration has been used to keep sexual harassment complaints quiet, a handful of companies, including Google and Facebook Inc., agreed to get rid of it for harassment claims Wow, how noble of them. How about getting rid of all of that BS?

cryptonector 8y ago
Waiving your right to first go to court seems reasonable enough provided you cannot waive the right to appeal arbitration in court.
- vageli 8y ago
  How can you appeal the arbitration in court? Pretty sure you agree (when signing away your rights) that you will hold the arbitration result to be binding and you give up any potential court remedy. IANAL though.
  - gpm 8y ago
    I believe they were talking about an alternate world where arbitration decisions would be appealable, not the world we live in.
    - asdfasgasdgasdg 8y ago
      Are you sure? https://law.freeadvice.com/litigation/appeals/arbitration_appeals.htm https://law.freeadvice.com/litigation/appeals/arbitration_ap... Granted, the appeals are unlikely to succeed, but perhaps that is because arbitration typically has an approximately fair outcome? Appeals of typical court cases aren't likely to succeed either, but we don't say that court is therefore unfair.
      - jjoonathan 8y ago
        Yes, I'm sure, because I read your link, which says that you can't appeal the facts of the case or the merits of the decision, you can only appeal the process, which, in its own words, provides "a high standard of deference to the arbitrator."
        asdfasgasdgasdg 8y ago
        You're generally not going to be able to appeal either of those things in court, either, is my point.
        jjoonathan 8y ago
        It may be your point, but it isn't the point under debate. We are talking about whether or not the courts provide a check/balance for the decisions of the arbitration system. They do not.
  - cryptonector 8y ago
    In particular I have in mind issues of law. Things like whether a business should be allowed to withhold deferred compensation from an ex-employee who takes them to an arbitrator. Or whether a bonus for the previous year, already announced, is deferred compensation or future compensation, and therefore cannot be withheld after a layoff early the next year. Obviously some of these things are policy issues to be settled statutorily, but some also are exactly the sorts of issues to be settled by courts in the absence of statutory law, and some may involve invalidating unconstitutional statutes or parts of them. Appeals of procedural matters also should be allowed, naturally. And procedural errors in ascertaining the facts of the case should cause de novo arbitration (or removal from arbitration and into a jury trial, if the arbitrators insist on making the sort of procedural errors that call their fact finding into question). Otherwise, fact-finding by arbitrators should not be subject to appeal, as allowing them to so be would greatly diminish the utility of arbitration. Another thing to appeal would be the method of selection of arbitrators, the validity of their credentials, etc. But there should be fairly high bars to these (not sure how to construct them).
- rocqua 8y ago
  What makes the most sense is that both sides have the option to accept arbitration before any trial starts. This way, routine cases can be dealt with in arbitration, and more complicated ones at trial. What needs to be avoided is * people being pressured into arbitration in return for something (e.g. Accept arbitration or don't get a job) * people opting into/out of arbitration based on rulings. So, no deciding to move to arbitration because you don't like a judge, nor deciding to go for a trial if arbitration isn't going your way.
philwelch 8y ago
> It's absurd that you can actually waive any of your legal rights.. "You have the right to remain silent. So, we're just gonna go home now. Bye." A right that you cannot waive is more of an obligation, even if it's an obligation that in theory is to your own benefit.
- mikeash 8y ago
  There’s a difference between a right which you can choose not to exercise at a given moment, and a right which you can waive in perpetuity. Your example is the former. You can choose not to remain silent. However, you do not waive the right! At any time, you can stop talking. Binding arbitration clauses are the latter. It’s not just a matter of choosing to use arbitration. You also permanently give up your right to use the courts for that matter.
- learc83 8y ago
  There are many rights you can't waive. For instance, you can't sell yourself into slavery--everyone except for hardcore libertarians is fine with that one. And you can't waive your right to remain silent permanently. You can reassert that right at any time.
  - philwelch 8y ago
    Unless you plea bargain, or receive judicial immunity.
    - learc83 8y ago
      The right isn't really to "remain silent", it's the right to avoid self incrimination. If you have immunity, you still have that right, you just can't incriminate yourself.
- johnnyfaehell 8y ago
  > A right that you cannot waive is more of an obligation, even if it's an obligation that in theory is to your own benefit. This is one of the silliest sentences I've read today. An obligation is you had to do something. While a right is something you can choose to exercise or not. With the right to be silent, you never waive that right as in they can never force you not to be silent. What you do is you exercise your right to be silent or you don't. You can decide when and if you speak.
kwanbix 8y ago
I thought exactly the same. In my country, and I believe many others, that is not possible, no matter how many times I sign.
umanwizard 8y ago
> It's absurd that you can actually waive any of your legal rights... Seriously, this is bonkers. I see this claim all the time in comments about mandatory arbitration clauses, but it doesn’t make sense as stated. You need to narrow it down or at least clarify it somehow. Being able to waive legal rights is necessary for society to function. For example, I have the legal right to not give McDonald’s $1. I waive that right in exchange for them giving me a soda. I have the legal right not to go to work every day, which I waive in exchange for a paycheck. And so on.
- ragesh 8y ago
  That's a good point. I suppose the goal is that your right to a judicial process must become inalienable, much like your rights to life and freedom that cannot be waived contractually.
- virgilp 8y ago
  > I have the legal right not to go to work every day, which I waive in exchange for a paycheck No you don't. You chose to go to work every day, in exchange for said paycheck. But it is a choice, and you can reverse it any time. Waiving the right means "in exchange for this paycheck, I promise to waive my right not to go to work for you - i.e. I am now legally your slave". You can't do that.
CaptainZapp 8y ago
It's absurd that you can actually waive any of your legal rights... Employment laws in Switzerland allow some contractual issues to be freely set, some can only be changed to the employees advantage and some cannot be changed at all. For example : Mandatory vacation by law is 4 weeks (20 days). A contract can stipulate 5 weeks vacation, but agreeing on three weeks is illegal. Despite the fact that UBS is a Swiss bank trying to sneak an arbitration clause into a Swiss employment contract would be laughed out of court.
lucozade 8y ago
It's only absurd if you waive a right that is beneficial to you. In the EU we have a legal right to work no more than 30-something hours (I don't recall the exact figure). Now, I'm fine with the idea that no-one should be forced to work excessive hours. So I have no issue with a right of this type existing. But that's different from me choosing to work particular hours. So, in my case, that right is a restriction to my freedom that has no particular benefit. So I waive it.
- TheCoelacanth 8y ago
  You shouldn't be able to waive any right preemptively. If you choose to waive the right to trial for a current case or choose to waive the right to not work over 30 hours for now, that is fine. If you can waive the right to ever go to court or permanently waive the right to not work more than 30 hours, that is a problem.
  - lucozade 8y ago
    There's no "ever" here. I choose to waive my right within my existing contract.
tyfon 8y ago
I think this is solved quite ok where I live. We can not "agree" to anything that gives us less rights than the laws express. So you can't enter into an agreement where you waiver worker rights, consumer rights (warranty) etc. Any such agreements are void.

by Aqua 8y ago

cryptonector 8y ago

Waiving your right to first go to court seems reasonable enough provided you cannot waive the right to appeal arbitration in court.

vageli 8y ago
How can you appeal the arbitration in court? Pretty sure you agree (when signing away your rights) that you will hold the arbitration result to be binding and you give up any potential court remedy. IANAL though.
- gpm 8y ago
  I believe they were talking about an alternate world where arbitration decisions would be appealable, not the world we live in.
  - asdfasgasdgasdg 8y ago
    Are you sure? https://law.freeadvice.com/litigation/appeals/arbitration_appeals.htm https://law.freeadvice.com/litigation/appeals/arbitration_ap... Granted, the appeals are unlikely to succeed, but perhaps that is because arbitration typically has an approximately fair outcome? Appeals of typical court cases aren't likely to succeed either, but we don't say that court is therefore unfair.
    - jjoonathan 8y ago
      Yes, I'm sure, because I read your link, which says that you can't appeal the facts of the case or the merits of the decision, you can only appeal the process, which, in its own words, provides "a high standard of deference to the arbitrator."
      - asdfasgasdgasdg 8y ago
        You're generally not going to be able to appeal either of those things in court, either, is my point.
        jjoonathan 8y ago
        It may be your point, but it isn't the point under debate. We are talking about whether or not the courts provide a check/balance for the decisions of the arbitration system. They do not.
- cryptonector 8y ago
  In particular I have in mind issues of law. Things like whether a business should be allowed to withhold deferred compensation from an ex-employee who takes them to an arbitrator. Or whether a bonus for the previous year, already announced, is deferred compensation or future compensation, and therefore cannot be withheld after a layoff early the next year. Obviously some of these things are policy issues to be settled statutorily, but some also are exactly the sorts of issues to be settled by courts in the absence of statutory law, and some may involve invalidating unconstitutional statutes or parts of them. Appeals of procedural matters also should be allowed, naturally. And procedural errors in ascertaining the facts of the case should cause de novo arbitration (or removal from arbitration and into a jury trial, if the arbitrators insist on making the sort of procedural errors that call their fact finding into question). Otherwise, fact-finding by arbitrators should not be subject to appeal, as allowing them to so be would greatly diminish the utility of arbitration. Another thing to appeal would be the method of selection of arbitrators, the validity of their credentials, etc. But there should be fairly high bars to these (not sure how to construct them).
rocqua 8y ago
What makes the most sense is that both sides have the option to accept arbitration before any trial starts. This way, routine cases can be dealt with in arbitration, and more complicated ones at trial. What needs to be avoided is * people being pressured into arbitration in return for something (e.g. Accept arbitration or don't get a job) * people opting into/out of arbitration based on rulings. So, no deciding to move to arbitration because you don't like a judge, nor deciding to go for a trial if arbitration isn't going your way.

philwelch 8y ago

> It's absurd that you can actually waive any of your legal rights.. "You have the right to remain silent. So, we're just gonna go home now. Bye." A right that you cannot waive is more of an obligation, even if it's an obligation that in theory is to your own benefit.

mikeash 8y ago
There’s a difference between a right which you can choose not to exercise at a given moment, and a right which you can waive in perpetuity. Your example is the former. You can choose not to remain silent. However, you do not waive the right! At any time, you can stop talking. Binding arbitration clauses are the latter. It’s not just a matter of choosing to use arbitration. You also permanently give up your right to use the courts for that matter.
learc83 8y ago
There are many rights you can't waive. For instance, you can't sell yourself into slavery--everyone except for hardcore libertarians is fine with that one. And you can't waive your right to remain silent permanently. You can reassert that right at any time.
- philwelch 8y ago
  Unless you plea bargain, or receive judicial immunity.
  - learc83 8y ago
    The right isn't really to "remain silent", it's the right to avoid self incrimination. If you have immunity, you still have that right, you just can't incriminate yourself.
johnnyfaehell 8y ago
> A right that you cannot waive is more of an obligation, even if it's an obligation that in theory is to your own benefit. This is one of the silliest sentences I've read today. An obligation is you had to do something. While a right is something you can choose to exercise or not. With the right to be silent, you never waive that right as in they can never force you not to be silent. What you do is you exercise your right to be silent or you don't. You can decide when and if you speak.

kwanbix 8y ago

I thought exactly the same. In my country, and I believe many others, that is not possible, no matter how many times I sign.

umanwizard 8y ago

> It's absurd that you can actually waive any of your legal rights... Seriously, this is bonkers. I see this claim all the time in comments about mandatory arbitration clauses, but it doesn’t make sense as stated. You need to narrow it down or at least clarify it somehow. Being able to waive legal rights is necessary for society to function. For example, I have the legal right to not give McDonald’s $1. I waive that right in exchange for them giving me a soda. I have the legal right not to go to work every day, which I waive in exchange for a paycheck. And so on.

ragesh 8y ago
That's a good point. I suppose the goal is that your right to a judicial process must become inalienable, much like your rights to life and freedom that cannot be waived contractually.
virgilp 8y ago
> I have the legal right not to go to work every day, which I waive in exchange for a paycheck No you don't. You chose to go to work every day, in exchange for said paycheck. But it is a choice, and you can reverse it any time. Waiving the right means "in exchange for this paycheck, I promise to waive my right not to go to work for you - i.e. I am now legally your slave". You can't do that.

CaptainZapp 8y ago

It's absurd that you can actually waive any of your legal rights... Employment laws in Switzerland allow some contractual issues to be freely set, some can only be changed to the employees advantage and some cannot be changed at all. For example : Mandatory vacation by law is 4 weeks (20 days). A contract can stipulate 5 weeks vacation, but agreeing on three weeks is illegal. Despite the fact that UBS is a Swiss bank trying to sneak an arbitration clause into a Swiss employment contract would be laughed out of court.

lucozade 8y ago

It's only absurd if you waive a right that is beneficial to you. In the EU we have a legal right to work no more than 30-something hours (I don't recall the exact figure). Now, I'm fine with the idea that no-one should be forced to work excessive hours. So I have no issue with a right of this type existing. But that's different from me choosing to work particular hours. So, in my case, that right is a restriction to my freedom that has no particular benefit. So I waive it.

TheCoelacanth 8y ago
You shouldn't be able to waive any right preemptively. If you choose to waive the right to trial for a current case or choose to waive the right to not work over 30 hours for now, that is fine. If you can waive the right to ever go to court or permanently waive the right to not work more than 30 hours, that is a problem.
- lucozade 8y ago
  There's no "ever" here. I choose to waive my right within my existing contract.

tyfon 8y ago

I think this is solved quite ok where I live. We can not "agree" to anything that gives us less rights than the laws express. So you can't enter into an agreement where you waiver worker rights, consumer rights (warranty) etc. Any such agreements are void.