1. “Supreme Court delivers blow to workers\' rights, making it more difficult to sue employers”
In May, 2018, the Supreme Court made a major ruling by splitting 5-4 in upholding the arbitration practice. The ruling was a huge blow to the employee’s ability to take collective action against their employers. William Brangham invited Mercia Coyle of The National Law Journal to discuss in detail about the issue of balance of power in workplaces. There were groups of employees from three different companies who brought wage and hour claims against their employers. Some of the group members wanted to go to the extent of banding together since the money involved individually was little. The employers were against the idea of banding and clearly stated that the workplace arbitration prohibits workers to take collective or class actions. The employees however insisted that their employers had violated The National Labor Relations Act, enacted in 1935, which guarantee workers’ the rights to participate in collective action for their mutual protection. In contrast, the justices argued that The Federal Arbitration Act, 1952, prevailed in this case. The Federal Arbitration Act says that workers are not allowed to band but instead they should present their claims individually. Mercia Coyle supports William proposition that workers are not aware of the clauses their signing. She says that often times, such clauses are in small prints as in the case with consumer agreements. Justice Ginsburg felt very strongly in the case presented and she referred to the arbitration agreements as arm-twisted, take-it-or-leave-it agreements and hence the dissent. She further added that the Labor law has nothing to do with arbitration and the Congress needs to make a law that incorporates both the arbitration and the labor law acts. This case gives a summary of the case presented and how the Labor and Arbitration Acts were used to rule against workers’ collect
2. “Google to make arbitration in harassment cases optional”
In response to a demonstration in which over 20,000 workers participated, Sundar Pichai wrote an email to address the company’s handling of sexual misconduct cases. He recognized the fact that the company had not been doing everything right and changes had to be made. Sundar outlined key steps that the company was making to make things right with the employees. The steps included getting rid of forced arbitration, a key demand of the employees, streamlining the reporting process for sexual harassment cases and to expand the company’s sexual harassment training. He says that the company will double down on its commitment to be a representative, equitable and respectful workplace. The Organizers confirmed that these were key demands they had been talking to the company about for years. The New York Times had reported that Andy Rueben, the father of android, had an exit package worth 9o million dollars which was reported as a credible claim against him. The organizer indicated that this was a 90 million stroll that brought the issue in the forefront not just to the company but also in the eyes of the world. Among the employees’ demands that were not included in the Pichai’s email was to have an employee representative on the Alphabet board which was less likely to happen. The email raises uncertainty on whether the conversation will stop or propel it further.
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3. “Forced Arbitration: Silencing Victims of Sexual Harassment”
In 1991, Supreme Court ruled that mandatory arbitration clauses were constitutional. These clauses are often found in employment contracts and they aim at resolving conflicts between the employees and the employers through third party arbitration other than the court system. The use of mandatory arbitration continues to increase as the companies realize its advantages. In 1991, only two percent of employees were subject to forced arbitration clauses which rose to over 25 percent a decade later. Today, over 50 percent of all employees are subject to forced arbitration. Arbitration clauses are common in employment contracts in almost every field and many large employers require them. Companies have extolled the benefits of the arbitration clauses claiming that it saves time and money by preventing litigation and protecting the parties involved in the dispute. When an employee signs an employment agreement without an arbitration clause, in case of a dispute at work, he/she files the charges with the Equal Employment Opportunity Commission (EEOC) and enters in a non-binding mediation with her employers. If the employee and the employer do not come to an agreement the EEOC intervenes and tries to settle the dispute. In case an employee signs an employment contract with an arbitration clause and there is a dispute at work, the employer appoints an arbitrator. The process of investigation starts and is time bound (depending on the agreement on the employment contract). The Arbitrator rules within 30 days and his decision is final and appeals cannot be made. The arbitration processes seem efficient but in sexual harassment cases, it favors the employers more. It is unfortunate that many employees don’t even know about the arbitration clauses they are signing. Mandatory arbitration is a strategy used by employers to keep the public in the dark about misconduct including sexual harassment cases. The #Me Too movement revealed so many cases of sexual; harassment. In essence the Arbitration clauses have been used to silence victims of sexual harassment.
Key Terms
Employment discrimination: It is a form of discrimination based on sex, race, nationality, age and/or disability.
Immutable characteristics: Refers to physical attributes that are innate, established and unchangeable.
Protected classifications: Group of employees qualified for special protection by the Authority, policy or by the law.
Prima Facie case: A case where the evidence produced is considered sufficient to enable a verdict or decision to me made except in cases where the evidence is rebutted.
Preponderance of evidence: The greatest weight of evidence, based on truth and evidence, that is required in a court of law.
Direct evidence: Refers to evidence that directly support the truth of an allegation.
Circumstantial evidence: Evidence that is dependent on inferences such as fingerprints in a crime scene, to come to a conclusion of facts.
Pretext: A ‘fake’ reason given to justify an action.
Motion for summary judgement: It is a request for the court to rule that the other party has no case since there are no facts to support an assertion.
Statistical proof: It is a demonstration of certainty for a hypothesis based on statistical tests of the supporting evidence.
Four-Fifth/ 80-Percent Rule: The rule state that 20% of the employee should take more that 80% role of the company
Burden of Proof: An obligation to present factual evidence on a criminal charge.
Mixed motive: It is an employment law concept that proves illegal discrimination against employees.
Retaliation: Punishment by employer to the employee for engaging in activities protected by the law
Associational retaliation: refers to retaliation of an employee by taking an adverse action against an employee’s close family member.
Cat’s paw theory of liability: The theory states that the employer is liable for discriminatory acts of a biased supervisor when the supervisor influenced the unbiased employment decision maker.
Equal Employment Opportunity Commission (EEOC): A commission whose mandate is to carry out investigations on workplace disputes between employees and employers and come up with a fair verdict.
706 Agencies: They are local or state agencies approved by EEOC and satisfies the criteria stated in Section 706 (c) of title VII (42 U.S.C).
Exhausting administrative remedies: Prior to seeking judicial review, one must exhaust the agency’s available remedies.
Right-to-sue letter: A letter granted by the EEOC to an employee before suing their employer for discrimination under federal law.
Administrative law judge: An administrative judge is a judge of facts who presides over trials and resolves the claims.
Alternative dispute resolution: Use of arbitration or mediation to resolve dispute other than using litigation.
Mediation: A process of dispute resolution where a neutral third party helps the disputing parties to come to an agreement.
Arbitration: Use of an arbitrator or tribunal to resolve disputes without involving the court.
Federal Arbitration Act (FAA): An act that provides for judicial enablement to resolve private disputes through arbitration.
Class Action lawsuit: A court case where a one of the disputing parties is a group collectively represented by one person.
Opt Out: Choosing not to be part of an activity or being involved in it.
Mandatory grievance procedures: A defined form of dispute resolution used by a company to deal with complaints by workers.
Statute of limitations: A law that defines the maximum time set to initiate legal proceedings after an event has occurred.
Job relatedness: A criteria used to hire employees based on skills and traits that are job related and coherent with business necessity
Business necessity: A legal concept used by employers to justify their employment decisions which are disproportionate to a particular group.
BFQQ: They are exceptional qualities that employers are allowed to consider during the hiring process.
After-acquired evidence: These are facts that an employer learns after dismissing an employees.
Laches: Unreasonable delay in asserting a legal privilege or right.
Mixed motive: A concept applied in employment law to verify illegal discrimination against an employee.
Mt. Healthy defense: A defense applied by employers to defend themselves against claims of political discrimination by their employees.
Toiling and mitigation: Refers to an opportunity to provide additional information that will help you when the court is giving verdict.
Faragher/Ellerth defense: A defense used by employers to defend hostility claims in working environments by their supervisors.
Lodestar:It is a legal dispute resolution centre that focus on understanding the nature of conflicts and its impact on the effectiveness of dispute resolution.
