3 ms·

This article is kind of a mess, but if you get to the end you learn yes these cases were found to be illegal in arbitration hearings. Unfortunately they were no

by bryan0 4y ago

This article is kind of a mess, but if you get to the end you learn yes these cases were found to be illegal in arbitration hearings. Unfortunately they were not allowed to proceed with a class action lawsuit because of arbitration rules, so they would need to fight it one at a time.

gcanyon 4y ago
To me, there's a world of difference between "lost at arbitration" and "is illegal." I'm saying that the rules should be clear-cut up front. To draw a comparison with another company that skirts this line: if Uber required drivers to take customer service classes before allowing them to drive people around, and especially if the drivers had to pay for those classes, that, to me, should be illegal. When you hire a gardener to mow your lawn, you don't get to specify whether they use a Greenworks or Black & Decker mower. Or require that they pay you to train them how to trim your junipers. In this situation, the law should be clear up front that this sort of relationship is disallowed, such that the circumstance never occurs to go to arbitration.
essentialfloss 4y ago
These arbitration rules superceding class action is a fairly new phenomenon, and stems from an att v concepcion. A guy I met clerked for a judge that decided that case, and wrote most of the decision and he said that he regretted it enormously. Despite just being the mouthpiece of his pos judge, he sees his words quoted over and over denying exploitation. The whole premise is insane, and guts class actions.
londgine 4y ago
isn't that good for employees and bad for the employer? Each employee can do the same exact arbitration, and win. The employer, rather than wasting lawyers for 1 class action, now must pay for each individual arbitration
- essentialfloss 4y ago
  Arbitration does not have precedent, so each case has to be argued separately and can have different outcomes. On top of that burden and can have fee-shifting provisions that set a significant hurdle to pay upfront costs on the employee. Class action waivers are bullshit.
- bryan0 4y ago
  Yeah not a lawyer and not sure if it’s a good for employees not, but I think companies started recently removing arbitration clauses because of this reason?
- Beldin 4y ago
  That depends on (1) whether future arbitration cases are guaranteed the same outcome as those already settled, and (2) whether this outcome becomes as generally known amongst victims as a class action lawsuit would be. Lastly: I'm not a corporate lawyer, so I don't know what legal reasons a company has to prefer arbitration over legal procedures. But they must have some. And those reasons are unlikely to lead to worse outcomes for the company.
  - BartjeD 4y ago
    Arbitration is a contentious legal issue, despite being present in many types of contracts. It is contentious because legal research has repeatedly demonstrated that there are legal fields in which for an undetermined reason the plaintiff faces far longer odds than they would have in court. This concerns arbitrations that in 90% of cases are in favor of the defendant. While in 'normal' case law you see rates closer to 60%. (Yes the research also accounted for cost differences by comparing similar classes of cases, no-cure-no-pay etc..) It is also suspected that the plaintif usually gets less compensation for damages through arbitration. Another issue is that arbitrators sometimes earn a lot money and are obviously incentivised to attract 'customers'. The problem is that there are and will always be many more plaintiffs than there are defendants. So the selection of arbitrators depends on decisions by the future-defendants. (Unless a specific organisation is legally mandated, but I've not encountered this before)
    - fallingknife 4y ago
      How do they measure the number of cases that go either way? I assume this excludes settlements? If so it would explain the discrepancy. Arbitration is so much cheaper than going to trial that it would make sense to try a weaker case just based on risk vs reward.
  - bozhark 4y ago
    Arbitration is the HR of workers rights
- hiddencost 4y ago
  Most people in this situation are struggling to feed their family, they don't have time for arbitration. And the only way they'd get representation is from someone doing a class action for a cut of the winnings. So they either need litigation with teeth (big class actions with massive punitive damages) or regulatory oversight with similar strength, to make employers unwilling to risk it. Or strong unions that can negotiate and effectively with hold labor as a group.
  - scarface74 4y ago
    And winning in a class action lawsuit only helps the lawyers.
    - nraynaud 4y ago
      There is some truth on the damages sides, but it also bites the defendant very hard and tends to change behaviors.
    - acover 4y ago
      That entirely depends on the case. There are class actions that are life changing then there are those where your damages are only $5.
    - hgsgm 4y ago
      You can opt out of a class action that doesn't satisfy you.
- gnicholas 4y ago
  Employer often selects the arbitrator and is therefore a repeat player. This sets incentives for the arbitrator, no matter how fair they intend to be. Also, pretrial discovery is much broader in a class action, so much more expensive. The procedures available to a plaintiff in an arbitration are much more limited. But big picture, it’s better to have more options rather than fewer.
- helsinkiandrew 4y ago
  It depends a lot on the wording of the arbitration agreement. Many of these people are struggling to make ends meet and it’s a lot of effort and lost work to risk for a small payout, but if enough individual claims are won it doesn’t take much effort for some lawyers to start automating the process and file tens of thousands of claims like those against Uber. https://www.hklaw.com/en/insights/publications/2022/04/uber-loses-appeal-challenging-91-million-in-mass-arbitration-fees https://www.hklaw.com/en/insights/publications/2022/04/uber-...
- avidphantasm 4y ago
  Cars are often more convenient than public transit, but many people can’t afford a car payment, insurance, maintenance, fuel, parking, tolls, etc. For these people, if there’s no bus/train, they walk or bike, even if it’s not safe or is not time-efficient to do so.
- mherdeg 4y ago
  It's very funny to read stuff about mass arbitrations (e.g. https://www.cooley.com/news/insight/2022/2022-06-30-how-companies-can-hedge-risk-of-mass-arbitration https://www.cooley.com/news/insight/2022/2022-06-30-how-comp...). Oh no - you're facing millions of dollars in mandatory fees to defend against thousands of nearly identical cases in arbitration? My goodness, who forced you to adopt that arbitration clause? How terrible of them.

by bryan0 4y ago

gcanyon 4y ago

To me, there's a world of difference between "lost at arbitration" and "is illegal." I'm saying that the rules should be clear-cut up front. To draw a comparison with another company that skirts this line: if Uber required drivers to take customer service classes before allowing them to drive people around, and especially if the drivers had to pay for those classes, that, to me, should be illegal. When you hire a gardener to mow your lawn, you don't get to specify whether they use a Greenworks or Black & Decker mower. Or require that they pay you to train them how to trim your junipers. In this situation, the law should be clear up front that this sort of relationship is disallowed, such that the circumstance never occurs to go to arbitration.

essentialfloss 4y ago

These arbitration rules superceding class action is a fairly new phenomenon, and stems from an att v concepcion. A guy I met clerked for a judge that decided that case, and wrote most of the decision and he said that he regretted it enormously. Despite just being the mouthpiece of his pos judge, he sees his words quoted over and over denying exploitation. The whole premise is insane, and guts class actions.

londgine 4y ago

isn't that good for employees and bad for the employer? Each employee can do the same exact arbitration, and win. The employer, rather than wasting lawyers for 1 class action, now must pay for each individual arbitration

essentialfloss 4y ago
Arbitration does not have precedent, so each case has to be argued separately and can have different outcomes. On top of that burden and can have fee-shifting provisions that set a significant hurdle to pay upfront costs on the employee. Class action waivers are bullshit.
bryan0 4y ago
Yeah not a lawyer and not sure if it’s a good for employees not, but I think companies started recently removing arbitration clauses because of this reason?
Beldin 4y ago
That depends on (1) whether future arbitration cases are guaranteed the same outcome as those already settled, and (2) whether this outcome becomes as generally known amongst victims as a class action lawsuit would be. Lastly: I'm not a corporate lawyer, so I don't know what legal reasons a company has to prefer arbitration over legal procedures. But they must have some. And those reasons are unlikely to lead to worse outcomes for the company.
- BartjeD 4y ago
  Arbitration is a contentious legal issue, despite being present in many types of contracts. It is contentious because legal research has repeatedly demonstrated that there are legal fields in which for an undetermined reason the plaintiff faces far longer odds than they would have in court. This concerns arbitrations that in 90% of cases are in favor of the defendant. While in 'normal' case law you see rates closer to 60%. (Yes the research also accounted for cost differences by comparing similar classes of cases, no-cure-no-pay etc..) It is also suspected that the plaintif usually gets less compensation for damages through arbitration. Another issue is that arbitrators sometimes earn a lot money and are obviously incentivised to attract 'customers'. The problem is that there are and will always be many more plaintiffs than there are defendants. So the selection of arbitrators depends on decisions by the future-defendants. (Unless a specific organisation is legally mandated, but I've not encountered this before)
  - fallingknife 4y ago
    How do they measure the number of cases that go either way? I assume this excludes settlements? If so it would explain the discrepancy. Arbitration is so much cheaper than going to trial that it would make sense to try a weaker case just based on risk vs reward.
- bozhark 4y ago
  Arbitration is the HR of workers rights
hiddencost 4y ago
Most people in this situation are struggling to feed their family, they don't have time for arbitration. And the only way they'd get representation is from someone doing a class action for a cut of the winnings. So they either need litigation with teeth (big class actions with massive punitive damages) or regulatory oversight with similar strength, to make employers unwilling to risk it. Or strong unions that can negotiate and effectively with hold labor as a group.
- scarface74 4y ago
  And winning in a class action lawsuit only helps the lawyers.
  - nraynaud 4y ago
    There is some truth on the damages sides, but it also bites the defendant very hard and tends to change behaviors.
  - acover 4y ago
    That entirely depends on the case. There are class actions that are life changing then there are those where your damages are only $5.
  - hgsgm 4y ago
    You can opt out of a class action that doesn't satisfy you.
gnicholas 4y ago
Employer often selects the arbitrator and is therefore a repeat player. This sets incentives for the arbitrator, no matter how fair they intend to be. Also, pretrial discovery is much broader in a class action, so much more expensive. The procedures available to a plaintiff in an arbitration are much more limited. But big picture, it’s better to have more options rather than fewer.
helsinkiandrew 4y ago
It depends a lot on the wording of the arbitration agreement. Many of these people are struggling to make ends meet and it’s a lot of effort and lost work to risk for a small payout, but if enough individual claims are won it doesn’t take much effort for some lawyers to start automating the process and file tens of thousands of claims like those against Uber. https://www.hklaw.com/en/insights/publications/2022/04/uber-loses-appeal-challenging-91-million-in-mass-arbitration-fees https://www.hklaw.com/en/insights/publications/2022/04/uber-...
avidphantasm 4y ago
Cars are often more convenient than public transit, but many people can’t afford a car payment, insurance, maintenance, fuel, parking, tolls, etc. For these people, if there’s no bus/train, they walk or bike, even if it’s not safe or is not time-efficient to do so.
mherdeg 4y ago
It's very funny to read stuff about mass arbitrations (e.g. https://www.cooley.com/news/insight/2022/2022-06-30-how-companies-can-hedge-risk-of-mass-arbitration https://www.cooley.com/news/insight/2022/2022-06-30-how-comp...). Oh no - you're facing millions of dollars in mandatory fees to defend against thousands of nearly identical cases in arbitration? My goodness, who forced you to adopt that arbitration clause? How terrible of them.