As I’ve noted previously on this blog, it is important for workers to understand how forced arbitration—a seemingly innocuous procedural issue—undermines their civil rights.
Earlier this week I talked with Roberta Steele, Program Director at the National Employment Lawyers Association. Roberta’s work focuses on issues that prevent workers from having full and equal access to the courts. Prior to joining NELA, Roberta spent 17 years with the law firm now known as Goldstein, Borgen, Dardarian & Ho in Oakland, CA, where she represented plaintiffs in employment discrimination and wage and hour class and collective action litigation.
Q. Why is forced arbitration bad for workers?
A. There are really two big problems with forcing people to enforce their rights in arbitration rather than in court: a lack of transparency and a lack of accountability.
First, you can get bad judges and bad decisions in court just like you can in arbitration, but in court, unlike in arbitration, the proceedings and documents are open and public. The vast majority of documents filed in court are public and the hearings are held in public.
In arbitration, this is not the case. Nothing is public. Nothing is open to public scrutiny. This is a problem not only because the proceedings themselves are not public, but also because the public is not made aware of the malfeasance of employers.
Which brings me to the second problem, that there is a lack of accountability in arbitration. It is next to impossible to get an arbitrator’s decision reviewed. If you get a bad decision in a court of law you have the right to an appeal. But in arbitration, you do not have that right in any meaningful way.
Those are the two biggest issues with forced arbitration.
Q. How did the President’s Executive Order change the law on forced arbitration?
A. The President is doing what he can these days, but the executive order really improves things only for those workers who happen to work for large government contractors and who happen to have certain kinds of claims. While it was a step in the right direction, it does not cover the vast majority of workers and it does not cover certain claims, such as wage and hour violations, and there was a lot of disappointment that it does not go farther to protect workers’ access to justice.
Q. What should I do if I have an arbitration clause?
A. If people find they are subjected to forced arbitration clauses, there are organizations such as NELA and the Alliance for Justice that are interested in collecting information about companies that impose forced arbitration on their workers. (Blogger’s Note: Roberta later sent me a link to a brief documentary on forced arbitration produced by the Alliance for Justice.)
But I don’t know that your average worker, particularly a low-wage worker, is going to be able to do anything to get the employer to change the forced arbitration clause. For your average worker, there’s a very real need to have a job, to pay the bills, and to take care of their family.
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So true. Your average worker is not in a position to fight this fight. At least not alone. And big business knows this and has no incentive to change its practices unless we join together in this fight. So contact your elected officials and encourage them to pass the Arbitration Fairness Act. Sign up for grassroots advocacy. Or contact me or Roberta for more information.