Category Archives: Supreme Court

Your Job or Your Rights: How Employers Force Workers Into Arbitration

Article first published as Your Job or Your Rights: How Employers Force Workers Into Arbitration on Blogcritics. Blogcritics named this article an Editors’ Pick. Also published in The #employmentlaw Daily and New York Employment Law buzz.

Seven of Jamie Leigh Jones’s male co-workers welcomed her to her new job in Iraq by drugging and gang-raping her, according to the federal Equal Employment Opportunity Commission. She says that the rapists were so violent that afterwards she had to undergo reconstructive surgery on her breasts.

Ms. Jones sought her day in court, but her employer, Halliburton, tried to bar the courthouse doors. When she took the job Halliburton made her sign an arbitration agreement which forces employees to give up their rights to take employment-related disputes to a jury. Instead, they pledge to resolve disputes through secret, binding arbitration.

This spring the Supreme Court issued an opinion in another forced arbitration case, AT&T vs. Concepcion, which involved cell phone users whose service contract required them to take disputes to arbitration and not to court. It also prohibited them from bringing a class action in arbitration, leaving them no way to bring a class action at all. The Supreme Court announced that that is just fine. It is legal for a company to unilaterally ban customers from court and eliminate the possibility of a class action.

Many employers force similar arbitration provisions on their employees. In fact, there is a decent chance that you gave away your right to a jury without realizing it when you accepted your current job. Like mobile phone and credit card companies, employers hide this tidbit in jargon and small print. If you want the job, you trade your right to a jury, and in its place you get private, paid arbitrators whose decisions are essentially unappealable and who don’t have to follow the law. They don’t even have to explain the reasoning behind their decisions.

Not every employer pulls this trick, but many of the big ones do, including Anheuser-Busch, Cisco Systems, Dillard’s Department Stores, Halliburton, Hooter’s, and most major employers in the financial services industry. Approximately 48 million American workers may be bound by arbitration agreements, according to the National Employment Lawyers Association.

Employers favor arbitration because it can be faster and cheaper than court. But time-consuming judicial procedures are meant to make the process fair to both parties. Their absence from arbitration weights the balance in favor of employers: for instance, in court, employers have to turn over damaging documents and produce supervisors and co-workers for depositions; in arbitration, employers can usually keep all that information to themselves. Employers also like that arbitrators have a financial incentive to favor them: employers hire the same private arbitration companies over and over, whereas each employee tends to be a one-time player.

In Ms. Jones’s rape case, federal courts ruled that several of her claims (vicarious liability for assault and battery; intentional infliction of emotional distress; negligent hiring, retention, and supervision of the employees involved in the assault; and false imprisonment – this last arising out of Halliburton’s allegedly locking Ms. Jones in a container after the alleged gang-rape and refusing her even a phone call) were not covered by the forced arbitration clause in her employment agreement because they were not related to her employment. Therefore those claims could be heard in court rather than arbitration – but only after the arbitration of her other claims ended. This ruling validates the statements of many federal courts (though not this Supreme Court) that forced arbitration is unfair, and that it is particularly unfair in the context of employment discrimination claims.

Halliburton fought hard to convince the courts that all of Ms. Jones’ claims based on her alleged assault should be heard in private arbitration and not in open court because it knew it would be better off if it could keep Ms. Jones’s brutal allegations muffled in an inherently biased arbitration instead of public in an open, unbiased court. Despite its efforts, this June Ms. Jones’s remaining claims will go to trial.

The Supreme Court has signaled that it will not stop companies from forcing arbitration on individuals, and in the AT&T case it ruled that states may not do so either. Yet 59% of Americans oppose forced arbitration according to a study by Lake Research Partners. If employees (or consumers) are going to be protected from take-it-or-leave-it forced arbitration agreements, it will have to be by an act of Congress.

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Your Right to Text Smut on Your Employer’s Pager

The biggest take-away from the Supreme Court’s decision yesterday in City of Ontario v. Quon is that the employee in this case was a moron. As a law-enforcement officer he worked for the government, which gave him a text message pager he used to send sexually explicit messages to his wife and, inevitably, his mistress. And not just a couple messages on Valentine’s Day: in one month the man sent 399 of these private messages, but just 57 work-related messages.

A couple tips for this guy: first of all, sexually-explicit material just does not belong in the workplace. Whether it’s on your computer, by text message, or over the phone, it is at the very least tacky to do this kind of thing in an office on work time. Of course people will occasionally check their personal email or do a little web-surfing on company time – we’re only human, plus there are studies showing that those breaks from work actually improve productivity. But this porn type of stuff is a different story. If you’re in the office or using you’re employer’s equipment (stop snickering), the only appropriate place for sexually explicit matter is in your own head.

Second, how is it that there are people who still don’t get that when you talk dirty in writing, you can easily get caught? Golden-boy Tiger Woods got spanked because of this, not to mention however many legislators it’s been by now. If you have something really urgent to tell someone about their genitalia, you are just going to have to hold it until you see them in person, or else you run a good chance of getting caught. Maybe that risk is what excites these idiots, but if they are willing to risk their job to get their rocks off, it is (again) just tacky to turn around and sue their employers when they do get caught. Dude – you were begging for it, so just suck it up.

In terms of the actual legal significance of this case, it is pretty minor. The reason is that the employee here was a government employee. The Fourth Amendment (that’s the one about searches and seizures, for all you social studies drop-outs) applies only to the government, and the Supreme Court’s decision here was based on whether the employer violated the Fourth Amendment. For the vast majority of Americans who work for the private sector, this opinion does not apply to you. It’s amusing, sure, but not all that relevant to your own life (unless, again, you are one of those people who insists on writing nasty on work-owned equipment, in which case this is one more reminder that you are a git). To be fair, the Court was willing to just assume that “the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere,” i.e., private employees get the same protection from their employers as public employees get from theirs. It’s nice that the Court was comfortable enough with this proposition to assume it, but that doesn’t make it stone cold law.

The good news for Court fans is that it wasn’t just the employee providing entertainment value in this case. The Supreme Court had at least one doozy itself, writing that “the judiciary risks error in elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” Or, in English: “Caution: we don’t understand what text messages are and new technology scares us, so please don’t pay any attention to this opinion. Thank you.”

So if you work for the Supreme Court, it looks like the rules don’t apply to you – text message all the trash you want. You are not getting caught any time soon.