| Imagine that you're unemployed and need to get a job. It takes a lot of time these days. You call in all your favors, badger the FBI (friends, brothers and in-laws), send out your resume, go on some interviews. Some days, you replay a dead-end interview conversation over and over again in your mind, 'What did I say? What didn't I say? How could I have said that when I'd already rehearsed that question?' You worry, pace, lay awake and occasionally sit staring mournfully at your breakfast, wondering how much longer your favorite cereal is going to be on the menu.
Then the day you've been waiting for: you're hired.
One catch.
The HR rep puts a piece of paper on the desk in front of you and says you have to sign it to get the job. So you look it over. It's barely comprehensible, something about dispute resolution, but you see a word that makes you start reading a bit more closely.
"... in the event employee is raped by coworkers ... company complicit ... agree not to go to court ... civil suit settled through private arbitration firm of employer's choosing ..."
In the event, wait ... what!? You'd probably wonder what country you were in, wonder if you were really reading English, as you had innocently suspected when you sat down. Surely, I mean, come on, that can't be right. Is it even legal to sign away your right to go to court if someone commits a crime against you?
Yes. Let's take it as read that it is.
So really, think about it. You need this job, your family needs you to take it, and you don't know when another one will be on offer. Would you sign that piece of paper? |
| You've thought about it now? Good. Don't you wish I'd just made that up on my own and was pulling your leg?
Because millions of Americans, perhaps even you, have signed that contract, or some equivalent, already.
And the rape? I wish I was making that up, too. But while the mercenaries at KBR/Halliburton have been raping the treasury with their sweetheart, no-bid contracts and needlessly fomenting violence on the Iraqi streets, they've also turned a blind eye to the rape of their female employees by colleagues and then pressure the women to be silent. One of these victims was locked in a shipping container and held under guard after her rape, finally escaping when she convinced someone to give her a cellphone and calling for help. They've been able to get away with this because the women can't sue their employers for collaborating in the aftermath of these crimes against them, because they did sign that contract. It's called a binding mandatory arbitration agreement.
Kia Franklin wasn't kidding when she wrote yesterday about what's become a gaping loophole in Americans' access to the justice system. The agreement signed by KBR's employees in Iraq covers all civil employment disputes, replacing the US justice system with a private judge of KBR's choosing.
Because the Bush administration has issued an order prohibiting the assailants from being tried in Iraq and because the Justice Department won't prosecute the assailants, there is truly no recourse to the victims for these crimes. Not even the ability to sue their employers for covering up the assaults, or having a management culture where supervisors don't see the need to intervene when they know their employees are being given date rape drugs and sexually assaulted by US soldiers and/or colleagues.
Mother Jones says that thirty million Americans have signed similar employment contracts, but they aren't the only people who've signed their rights away. Most credit card agreements, all cellphone contracts, some computer purchasing contracts and some insurance agreements include mandatory arbitration clauses that have you signing away your rights to take disputes to a judge. And as I wrote last year after interviewing several farmers, if you're a livestock grower in America, arbitration rules your world:
... One former poultry farmer refused to be quoted at all if any information was included in this article that could identify him, the group he was with, the chicken integrator he talked about, or even the region of the country he came from. All out of fear that a relative could lose their chicken growing contract out of retribution.
"Being small farmers with a heavy debt load, most of us are afraid to speak out. ... If we have a complaint, we really have no recourse," said the former poultry farmer, while noting that their contracts include arbitration agreements that prevent them from taking the integrators to court. Of their options, he said, "You either sign [the contract you're offered when they deliver the chicks] or you don't get product. ... If he cuts us off, we're saddled with a debt we can't pay." ...
And consider, again, that the employer or contract-issuing corporation gets to pick their own judge. Do you think they're going to keep volunteering to go back to judges that find against them?
California is the only state in the nation that requires arbitration firms to perform any public reporting. An extensive, recent report on arbitration in credit card disputes by Public Citizen based on examining the records of the National Arbitration Forum. NAF gets 53 percent of its business from consumer credit cases with MBNA. NAF found in favor of their corporate clients and against consumers in 94 percent of the California cases available for review, and they actively cooperate with businesses to avoid saddling them with 'problem' arbitrators:
... One NAF arbitrator, a Harvard law professor, was blackballed after she awarded $48,000 to a consumer in a case in which a credit card company filed a claim against the consumer. After the same credit card company had her removed from other pending cases, she resigned, citing NAF's "apparent systematic bias in favor of the financial services industry." ...
To cover their tracks well, the report describes how arbitrators rarely issue written decisions unless they're requested to do so in advance and one of the parties to the dispute coughs up as much as $1,500 for a three page decision.
David Schwartz, asst. professor of law at John Marshall Law School, describes the attitude of the courts towards arbitration contracts as one of "abject deference." Their scope is construed broadly, he said, such that "everything arbitrable must be arbitrated."
What's arbitrable? Whatever has been so defined in the contract. As with the livestock contracts, most of these agreements are contracts of adhesion, which is to say that you can't negotiate over them, or cross out parts you don't like and try for another deal. They're take it or leave it.
Schwartz said that most of these contracts, in their literal fine print, "might as well be written in Sanskrit" for all the sense they make to anyone without legal training. But if you sign it, you're bound by it, even if you've signed away your right to go to court.
Though even if going to court is the standard prerogative, Schwartz said that only 2-3 percent of cases ever see a court room. The threat of court, with detailed rules of evidence and discovery, rights of review and procedural safeguards is enough to press most disputes into resolution before that point, giving consumers more leverage with large corporations. "Litigation in our system is effectively a preamble to settlement," he said.
And, according to Schwartz, corporations don't make out too badly even in court. Schwartz said they win 80% of employment discrimination cases, 60% of contract disputes and 50% of tort (usually negligence) cases. Businesses enter into pre-dispute arbitration agreements with other corporations in order to streamline their business dealings, but force them onto ordinary citizens in order to get 90+% odds in their favor.
There's no appeal to this system. As Sen. Russ Feingold said last year when he introduced legislation to ban arbitration in consumer contracts, it's "not enough that a decision was wrong" for the courts to be able to overturn it. Prof. Schwartz said it was almost impossible to prove corruption or bias charges that would allow a court to intercede in even the most egregious cases. Even a case like that of Jamie Leigh Jones', of which Feingold said last December:
... This case belongs in a court of law, with adequate court-supervised discovery, a neutral decision-maker who must issue written rulings on legal issues subject to appellate review, and most importantly, a jury of 12 men and women from the community to decide the facts and apply the law.
It is simply unconscionable that a corporation can avoid these bottom line components of the American legal system by essentially forcing an employee to sign an agreement that waives those rights. In many cases, employees don't even know that they have agreed to mandatory arbitration. But when they do know, they really have no choice but to sign. And if an employee has the courage to say no, as one of our witnesses at a hearing I held last week in the Senate Constitution Subcommittee did, the courts might force her into arbitration anyway.
... Perhaps tragic, high profile cases like this one will finally get the issue the attention it deserves. Mandatory arbitration in employment cases, as in consumer cases, and securities cases, and nursing home cases, and health care cases, is a direct challenge to fair enforcement of the laws that Congress passes to protect the American people. Until we prohibit enforcement of mandatory arbitration clauses in employee and consumer contracts, our laws will slowly but surely become optional. ...
The corporations have been privatizing the courts out from under us quietly and by stealth for years. They're locking us out of the protection that comes from living in a nation of laws. They're systematically barring access to the civil servants that enforce the directives of Congress and the rules of regulatory agencies, that are part of our national DNA and democratic institutional heritage.
Legislation against these outrages continues to languish in Congress. There isn't enough public pressure against what is a popular (with our corporate overlords) erosion of the commons.
But I hope next time a bill comes up on a funny-sounding topic called binding mandatory arbitration, that I can count on you to raise hell about it with your representatives. There has to be some check, somehow, someday, on these gross impunities against justice and human dignity. |
