The Luxury of Objection, Part 1

So, I have been thinking a lot about the Franken Amendment.  More specifically, I have been thinking about the people that oppose it. Not just those that voted against it and the DoD, but also the general citizenry who believe that this Bill should not be passed. And yeah, I know that followers of Hannity don’t necessarily represent the “general citizenry,” but they seem to do a fine job of representing the people that have decided it is absolutely necessary that they oppose the bill. Because this exemplifies something that greatly confounds me.

So, the Franken Amendment, for those of you that don’t really know, is a policy mandate that would prohibit DoD from entering into contracts with companies that require their employees to sign some pretty major arbitration agreements.  An arbitration agreement, for those of you that don’t know, is a contract between an employer and an employee wherein the employee agrees that in the event that something happens to them while they are in the active employ of their employer, employee agrees to waive his/her rights to sue employer and instead agrees to submit to binding arbitration.

Arbitration, for those of you that don’t know, is a non-judicial process where A and B meet with an arbitrator, who reviews the situation and enters a final and legally binding decision.  That is it – the end. No review, no appeal, no day in court, no jury, no accountability, no press, no right to discuss, no ability for judicial execution and enforcement, and no publicity.  But, despite what some of the tools in Congress are saying, this doesn’t mean ‘no lawyers.’  It also doesn’t mean it is less expensive.

And let me break it on down for you a little further. No matter how much people spin this, it is EMPLOYER-FRIENDLY. Yeah, it may have some benefits for the employee, but it is SO SO SO much better for employer than actual court, while actual court would almost always be better for the employee. Employers use these agreements to effective limit/remove their liability for everything from discrimination claims to assault.  If you think these are a good thing for employees and just a nice service that employers offer (how it is often spun to employees) then ask yourself this – why are employers so hot to get their workers to sign them? Because it is BETTER for the employer and WORSE for the employee.

So, you may ask, why in the HELL would an employee sign such a thing? Well, it isn’t like they have a choice. If they are not required to sign one at hiring, chances are at some point they will have one presented to them and will be given the hard sell on why they are so awesome for employees and how nice the employer is to provide such a service, and how they don’t have to sign, but if they want to keep working, they will need to sign it.  And meanwhile, employer is shitting bricks waiting to make sure that the pregnant woman signs it so that they can tell her they cut her pay.

But so what, you say, if you don’t like it, then find another job.  Really? Fuck you. If the Constitution gives us the right to seek legal redress, and Congress has given us a framework of laws and regulations to protect us, the why in the hell is it okay for an employer to effectively force you to waive all of that? It isn’t. But so long as anti-employee groups like the Chamber of Commerce are around and pouring money into the political coffers, Congress and the courts will allow these things. But I digress…


  1. COD said,

    October 24, 2009 at 9:09 am

    I understand how the arbitration agreements work with respect to civil disagreements such as pay, termination, benefits, etc. I’m still a little confused how it would be applied in a criminal case such as rape. An employment can’t take precedence over the law, can it?

  2. southern female lawyer said,

    October 24, 2009 at 8:25 pm

    COD – the arbitration agreement technically only bind the employer and the employee. Rape is both a crime and a tort. And if you are raped while on the job, in certain circumstances, your employer may be held liable. In cases like this one, there are also international law and jurisdictional issues. As I understand it (and I am by NO means well-educated on these issues, if any international or military attys are reading this, please chime in), they couldn’t be prosecuted in Iraq, DOD/DOJ could have had jurisdiction to prosecute this, but said that they couldn’t because of the arbitration clause. Which seems wrong – it looks like DOD/DOJ said they couldn’t go after the perpetrators because of the clause.

    At any rate, Halliburton/KBR “lost” the rape kit after locking her up under armed guard after the incident. The whole story is here

  3. (O)CT(O)PUS said,

    October 27, 2009 at 5:15 pm

    Since you are a lawyer … well … you know what I mean …

    What shocks us so much about this story is what happened to the victim: A savage rape, followed by savage confinement in a container for at least 24 hours and being denied medical treatment, the apparent deliberate loss of the rape kit, and further threats of loosing her job in the event she sought treatment. A crime followed by a systematic cover-up by company employees, followed by harassment as the victim sought legal redress. And company profits taking precedence over the woman’s most basic rights.

    What about “unconscionable” contracts and severability, and all that mumbo jumbo. And the DoJ in this matter was the Bush/Gonzo DoJ. Why not renew this matter under the Obama/Holder DoJ?

    Something like venereal disease, this case keeps offending and offending …

    But what do i know? I’m just a simple cephalopod.

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