No Forced Arbitration For Sexual Harassment Is A Good Start

The House and Senate have passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. It will go into effect once signed by President Biden. This law will ban forced arbitration and class action waivers  for all claims regarding sexual assault and sexual harassment. This was the House version, which is much better than the original Senate version that limited what was defined as sexual harassment. The version passed covers all sexual harassment cases as we know them.

 

Here's what it says:

§ 401. Definitions

“In this chapter:

“(1) PREDISPUTE ARBITRATION AGREEMENT.—The term ‘predispute arbitration agreement’ means any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.

“(2) PREDISPUTE JOINT-ACTION WAIVER.—The term ‘predispute joint-action waiver’ means an agreement, whether or not part of a predispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum, concerning a dispute that has not yet arisen at the time of the making of the agreement.

“(3) SEXUAL ASSAULT DISPUTE.—The term ‘sexual assault dispute’ means a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18 or similar applicable Tribal or State law, including when the victim lacks capacity to consent.

“(4) SEXUAL HARASSMENT DISPUTE.—The term ‘sexual harassment dispute’ means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.

Ҥ 402. No validity or enforceability

“(a) In General.—Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

“(b) Determination Of Applicability.—An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.”.

While this doesn't apply to sex discrimination that isn't harassment (such as a termination, suspension without pay, denial of promotion or failure to hire where sexual favors aren't requested), it does apply to harassment due to gender, and to harassment due to sexual orientation, as well as to harassment when sexual favors are requested. If you are singled out for harassment due to either gender or sexual orientation, that is sexual harassment under Title VII and under some state law, such as the Florida Civil Rights Act.

There is a move afoot to ban forced arbitration in other types of discrimination and harassment cases. This is a good start, but it isn't the end.

Why does it matter? Because arbitration is a secret tribunal, which is bad enough. Arbitration started as a good thing, where both parties chose it as a quicker way to resolve cases. The arbitrators were experts in complicated matters like construction. But it's come a long way from that.

The way forced arbitration works now is the big arbitration companies contract with corporations to be the arbitration forum they use for employment disputes. While the parties can pick from panel members and veto others, the panels tend to be skewed to pro-employer arbitrators. After all, if Arbitrator A rules against Company B, Arbitrator A is then forever vetoed as a panelist for Company B. And Company B spreads the word. Arbitrator A gets fewer and fewer cases. Goodbye income as an arbitrator.

So it's in arbitrators' interests, especially full-time arbitrators, to rule for employers. They don't care if employees, who will be in front of them once, are upset. They do care if a company that will be in front of them 200 times will be upset and veto them.

I'm not saying all arbitrators think like this. Many are still true neutrals. Heck, I'm an arbitrator. Because of my background representing employees, I'm rarely picked in employment cases because employers think I won't be neutral (untrue, by the way). Management-side lawyers and HR folks get picked a lot, and can make a nice income from them. 

Under many agreements, employees must pay half the arbitration expenses. Arbitrators are paid by the hour, and filing fees in high dollar cases can be huge. Employees can be forced to shell out thousands of dollars, if not tens of thousands of dollars, just to pay for the arbitrator and filing fee. Court costs a moderate filing fee of a few hundred dollars. Judges are paid by tax dollars, so the parties pay nothing.

I've seen too many situations where employment arbitration was basically an expensive kangaroo court. And there's almost no remedy. No appeal. No ability to challenge most rulings. And because it's secret, sexual harassment and sexual assault can be kept secret. Court is public. Anyone can attend a trial or hearing. Employers hate that.

Employers love the arbitration system. Love, love, love it. Employees should fight forced arbitration wherever they can. Now is a good time to call your representatives and tell them it's time to end forced arbitration.

California Bans Forced Arbitration For Discrimination Claims - Will Other States Follow?

Starting in 2020, employers in California are banned from requiring employees to agree to arbitration of state discrimination and labor law issues. That's good news for employees, maybe. And it may have an impact beyond California.

Arbitrations are bad for a number of reasons when done as mandatory processes rather than truly voluntary. Employees have been pushing back on mandatory arbitration, sometimes successfully. So this law will hopefully prevent abusive forced arbitrations in California.

This could affect employees beyond California if they work for a company with offices in California. Many will simply drop forced arbitration across the board.

I say maybe it's good for employees because there's still the Federal Arbitration Act to deal with. Employers will argue that this California law is preempted by the FAA, which allows abusive forced arbitration. I'm guessing we'll see litigation about this soon.

We need action in other states, and we need action on the federal level to ban abusive forced arbitrations. Arbitration can be a wonderful thing if truly voluntary and truly fair. We need to make sure that all employees get to make a real choice rather than being forced into an unfair process.

C'mon Florida. Let's do something to help employees for a change.

Companies Fold As Employees Push Back On Forced Arbitration

First Google had a bunch of employees walk out to protest sexual harassment arbitration, and it rescinded its arbitration policy. Now other companies are following as employees push back. Facebook, Microsoft, Uber, Square, Airbnb and eBay have all rescinded or said they will rescind their forced arbitration agreements for sexual harassment claims.

It isn't just tech firms that are getting pressure from employees. When Harvard law students threatened to boycott law firm Kirkland and Ellis because of mandatory arbitration agreements, the firm quickly did a 180.

Now students at other law schools are joining the fight, and have vowed not to work for law firms that require arbitration of employment law claims. The student statement includes these strong statements against employee arbitration agreements:

Mandatory arbitration agreements prevent employees from seeking justice in court and limit the enforcement of substantive employment rights. Mandatory arbitration forces employees to submit any dispute with their employer to binding, private, and often confidential arbitration—a process which advantages sophisticated, repeat players at the expense of individual claimants.
. . .

Finally, we recognize that mandatory arbitration is a policy that negatively impacts all workers, legal and non-legal, and not merely associates and summer associates. We are committed to including questions about employment practices for all employees in future surveys.

I think it's about time employees push back. Still, I have to wonder how many of these law students will end up going into management-side law practice and forcing employees of their clients to arbitrate, despite their clear knowledge that such agreements are about oppressing workers. 

Now that employees have demonstrated that resistance to arbitration agreements is not futile, I hope unions and other employee groups will take up this fight. And I hope (but seriously doubt) that this new generation of lawyers might actually push their clients to drop forced arbitration of employees.

Are You A Liar? Arbitration Is The Forum For You

Arbitration is very popular with employers, and no wonder. It's a liar's forum that employees can be blackmailed into. While courts penalize litigants for lying with heavy sanctions and dismissal of their claims/defenses, there is little a court can do when a litigant lies in an arbitration.

The Federal Arbitration Act, 9 U.S. Code § 10(a) provides:

In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—

(1) where the award was procured by corruption, fraud, or undue means

The Florida Arbitration Act, Fla. Stat. § 682.13 provides:

Vacating an award.—

(1) Upon motion of a party to an arbitration proceeding, the court shall vacate an arbitration award if:

(a) The award was procured by corruption, fraud, or other undue means

However, courts have refused to interpret these provisions to allow a court to refuse to enforce an arbitration award procured by perjury, or to set aside judgments entered on awards procured by perjury, except where the perjury wasn't "discoverable upon the exercise of due diligence prior to or during the arbitration." And the perjury must, "materially relate to an issue in the arbitration."

This means that if you know a party is lying during the arbitration, can prove they lied, do your best to impeach them during the proceeding, and the arbitrator still enters judgment for the liar, you have no remedy. The court can't penalize the liar. Arbitration laws give judges almost no leeway to review an arbitration award.

In court, if the other side lies and you can prove it, but the jury finds for the liar anyhow, the judge can set aside the judgment. And if the trial judge doesn't do it, the appellate judge can. Judges hate liars.

This is just one of the many problems with the one-sided forum that is employment arbitration. Employers like it because there are almost no checks and balances. They mostly pick arbitrators that come from an employer-side background, and that tend to rule for employers. While many arbitrators, even from the employer side, try to be fair when wearing the neutral hat, many whose income depends on getting selected by employers are not. Rule for an employee and you can be blackballed from being chosen to arbitrate by employers. So what's a little lie between friends?

Employers in Florida and many states can force employees to sign arbitration agreements with a sign-or-be-fired threat, and the courts don't consider this to be duress. Everyone with any common sense understands that this is coercion, but it's allowed.

I used to be a strong believer in arbitration as a good way for parties to voluntarily choose to resolve disputes. But when one side can blackmail another into "voluntary agreeing" to arbitrate, then veto any arbitrators it knows might rule for employees, plus get away with lying at will, it's a travesty.

Trump Says It's Okay For Federal Contractors To Break Employment Laws

Another week, another prediction sadly fulfilled. On December 2, I did a list of executive orders protecting employees of federal contractors that I predicted would be rescinded under Trump. A very important one just bit the dust.

The Fair Pay and Safe Workplaces Rule provided two important protections for employees that are now gone:

Blacklisting for employment/labor law violations: Anyone applying or bidding for a federal contract of $500,000 or more was required to disclose any employment or labor law violation. They had to disclose any administrative merit determination, arbitral award or decision, or civil judgment rendered against them within the preceding three-year period for a violation of any of a list of labor and employment laws, plus they have to update their violation information every six months and, for some contracts, obtain the same violation information from their covered subcontractors. This meant that federal contractors needed to be very afraid of things like a "cause" finding from EEOC. Punishment for repeat offenders could be up to cancellation or denial of a contract.

I predicted that employers would fear no more because they knew the rule would be gone soon.

No mandatory arbitration: The same executive order also banned agreements that require mandatory arbitration for discrimination and sexual harassment claims. Specifically, "for all contracts where the estimated value of the supplies acquired and services required exceeds $1 million, provisions in solicitations and clauses in contracts shall provide that contractors agree that the decision to arbitrate claims arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise." This also applied to subcontractors providing services or supplies over $1 million.

Federal contractors may now resume requiring employees to arbitrate.

Sad.

President Obama Orders Contractors To Disclose Labor Violations, Stop Mandatory Arbitration

In a gutsy and controversial move, President Obama signed an executive order placing new tough restrictions on federal contractors. If your employer contracts with the federal government it may have to disclose all labor violations in order to bid, and also have to stop mandating arbitration of employment disputes.

The pre-bid disclosure language is tough. It requires anyone bidding for a contract of $500,000 or greater to disclose:

[A]ny administrative merits determination, arbitral award or decision, or civil judgment, as defined in guidance issued by the Department of Labor, rendered against the offeror within the preceding 3-year period for violations of any of the following labor laws and
Executive Orders (labor laws):
(A) the Fair Labor Standards Act;
(B) the Occupational Safety and Health Act of
1970;
(C) the Migrant and Seasonal Agricultural Worker
Protection Act;
(D) the National Labor Relations Act;
(E) 40 U.S.C. chapter 31, subchapter IV, also known as the Davis-Bacon Act;
(F) 41 U.S.C. chapter 67, also known as the Service Contract Act;
(G) Executive Order 11246 of September 24, 1965
(Equal Employment Opportunity);
(H) section 503 of the Rehabilitation Act of
1973;
(I) 38 U.S.C. 3696, 3698, 3699, 4214, 4301-4306, also known as the Vietnam Era Veterans' Readjustment Assistance Act of 1974;
(J) the Family and Medical Leave Act;
(K) title VII of the Civil Rights Act of 1964;
(L) the Americans with Disabilities Act of 1990;
(M) the Age Discrimination in Employment Act of
1967;
(N) Executive Order 13658 of February 12, 2014
(Establishing a Minimum Wage for Contractors); or
(O) equivalent State laws, as defined in guidance issued by the Department of Labor.

This means employers won't be able to hide under the confidentiality of arbitrations any longer. They'll have to disclose safety violations, unpaid wages and discrimination/retaliation violations. Employers won't have to disclose settlements, so this will be an extra incentive for them to resolve claims quickly.

The arbitration language will be pretty easy for employers to get around. It only applies if the bid is for a contract of $1 million or more, and it doesn't apply if the employee has an arbitration agreement in place before the bid is made. You can expect employers to start racing around demanding employees sign arbitration agreements right before the bid goes out. However, employers whose contracts say they can change the terms of the contract (which most of them say) will still be out of luck on mandatory arbitration, so you may still be able to force them into court.

There are some other nice provisions of this order, like paycheck transparency and providing guidance to contractors to help them improve, so if you want to see the whole order, it's here.

This order comes on the heels of orders requiring contractors to pay a minimum of $10.10/hour, stop discriminating based on sexual orientation, and stop retaliating against employees who compare and discuss pay.

The message is clear: the United States is going to stop wasting taxpayer dollars on companies that don't comply with U.S. laws. It's about time.

Call Me Prescient: How My 2013 Employment Law Predictions Fared

If you are a regular reader, you'll recall that I made predictions at the beginning of 2013 about what I thought we could expect. How did I do? Call me Cassandra.

Here's what I said would happen, and what really did:

1. Even More Active NLRB: Look for stepped up activity against employers on social media restrictions, attempts to suppress worker concerted activities and lopsided agreements. NLRB will do what other government agencies have punted on: help employees.

Sure enough, NLRB didn't disappoint. They were up to full strength by the middle of  the year. They continued to press for employee rights in non-union workplaces. They struck down some overbroad social media policies and policies on confidentiality of investigations. They rolled out an app to inform employees in union and non-union workplaces about their rights. It wasn't all pro-employee. NLRB upheld several Facebook firings. See also here and here for some of 2013's social media cases.

2. EEOC Will Start Stepping Up Not to be outdone by NLRB, EEOC will become more active as well. This year saw the beginnings of activity to address gay rights and retaliatory confidentiality agreements. Look for more activity that actually helps employees, and for an agency that no longer accepts employer position statements as gospel.

EEOC tried to step up with the issuance of a guidance and then a clarification to its guidance on criminal background checks, but was repeatedly shot down in the courts. Let's hope they don't give up on this important issue, which definitely has a disparate impact on minorities. EEOC also stepped up its enforcement of Title VII regarding LGBT employees under the theory of "sexual stereotyping." They also cracked down on overbroad agreements that limit employees' ability to file with EEOC. I still see a tendency to accept employer position statements as gospel, at least here in Florida, but there's definite progress. Baby steps.

3. Marijuana Litigation With flat-out legalization in two states and legal medical marijuana in many more, we’ll start to see litigation on the employment-protection provisions built into many of these new state statutes. The fact that it’s still illegal under federal law will make things complicated. Will the feds finally give up and recognize state’s rights? Probably not this year, but definitely within the next 5 years.

Sure enough, the litigation has begun. See also here and here. Still nothing on the federal front to recognize states' rights, but it's only a matter of time.

4. Gay Rights Expansion Speaking of states’ rights, with gay marriage spreading across the country, the feds can’t be far behind. We probably won’t see Congress adding sexual orientation to Title VII or gay spouses to FMLA this year, but I think it’s going to happen this Presidential term.

Wow! What a year for gay rights. The Defense of Marriage Act was stricken down, which led to the Feds deciding that FMLA and EBSA do protect gay couples in states that legalized gay marriage. While there was no legislation passed to amend Title VII or FMLA, ENDA did pass the Senate (although it is stalled indefinitely in the House).

5. Strikes All of a sudden, workers are waking up. They’ve realized they don’t have to put up with crappy working conditions in silence. We’ll see more non-unionized workforces going on strike. We’ll also see some Wal-Mart and fast food corporations retaliating for the strikes that have happened last year and which will continue in 2013. Fortunately, I think NLRB will take action to slap employers for illegal retaliation.

2013 saw more fast food strikes and Wal-Mart strikes.  As predicted, Wal-Mart retaliated and NLRB slapped them.

6. Federal Courts Become (Slightly) Less Anti-Employee While federal courts have long been a sad place for employees, especially here in the 11th Circuit, some recent cases indicate that the times may be changing. Look for some rulings in favor of employees for a change. All it will take is a couple of Supreme Court appointments over the next four years and it will be a different world for employees. This year, the Supremes will, for the most part, continue to bend toward corporate interests instead of the working people.

There were some baby steps toward becoming more pro-employee in the federal courts. The usually very pro-employer 11th Circuit sided with the NLRB in a recess appointment case.  Several federal courts found that sex discrimination includes sex stereotyping, providing protection for LGBT employees. Some other pro-employee decisions here and here. Still, the Supremes came in overwhelmingly pro-employer this year. Overall, the federal courts remain a relatively unfriendly place for employees in many circuits.

7. Arbitration Under Fire Although arbitration clauses have been the darling of employers, who are sneaking them into applications, handbooks and that giant stack of papers employees sign on their first day, look for some attacks this year coming from government agencies. Watch for NLRB, EEOC, FTC and maybe even DOJ to subject arbitration agreements to extra scrutiny. It’s doubtful Congress will take action this year, but if they do something to help consumers, employees will probably be able to benefit.

Some courts have tossed one-sided pro-employer arbitration agreements. However, the Supremes upheld class action waivers in arbitration agreements. The NLRB lost when it attempted to invalidate an arbitration agreement. Meanwhile, FTC is challenging a consumer arbitration clause. No legislation passed to help consumers or employees this year.

8. Bullies Will Slide Although states periodically consider anti-bullying laws, they always fail to pass. It’s likely 2013 will be no different. Watch for more consciousness-raising but no legal action this year.

Still no anti-bullying laws passed in 2013. Sigh.

9. Privacy Protections More state legislatures will pass laws against demanding employee social media passwords and other egregious employer snooping. Congress might even do something to stop some of the worse invasions of privacy, but I won’t hold my breath. They’re too busy with gridlock to actually do anything that might protect their constituents.

Arkansas, Colorado, Illinois, Nevada, New Jersey, New Mexico, Oregon, Utah, Vermont and Washington passed laws against demanding social media passwords, with at least 36 states trying to follow suit.

10. Background Check Restrictions More states will place limitations on background checks and what background information employers can use against applicants. Watch for laws limiting use of criminal records, unemployment, and credit history against applicants. EEOC will continue looking for disparate impact of background check information against women and minorities. It’s only a matter of time, say 2013 or 2014, before we see a case arguing that use of criminal records has a disparate impact on men, but it won’t come from EEOC.

10 states and almost 60 local governments have passed "ban the box" legislation prohibiting or limiting the use of criminal background checks. Some major employers also announced they'd end the practice. There was one unsuccessful case arguing that criminal background checks had a disparate impact on men. It didn't come from EEOC. As I discussed in 2 above, EEOC lost a number of criminal background cases this year based on racial impact. It is no surprise that it didn't try to expand the theory to include sex discrimination.

Overall, 2013 was a mixed bag for employees. Better than some years, and we definitely saw some activity to protect employees. The biggest surprise was the passage of some minimum wage increases, with 13 states raising the minimum wage.

Stay tuned for my predictions for 2014.

Top Six Illegal Policies In Your Employee Handbook

Your employee handbook contains lots of policies and procedures you’re supposed to read and follow. But many handbooks contain policies the National Labor Relations Board (NLRB) considers illegal. NLRB is usually thought of as the agency that regulates all things union: elections, collective bargaining agreements, and unfair labor practices, to name a few. But I bet you didn’t know that they also probably regulate your employer unless you work for the government. That’s right: whether or not your workplace is unionized, the National Labor Relations Act (NLRA) applies to just about every private workplace.

Many employee handbooks contain policies that violate Section 7 of the NLRA, which says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” NLRB has a new web page that describes its enforcement efforts regarding concerted activities of employees.

Here are just some of the policies NLRB considers to be illegal that may well be in your handbook:

At-Will Employment: Your handbook probably says your employment is at-will. But in a recent complaint the NLRB filed against Hyatt Hotels Corporation, the NLRB found that an acknowledgement in the handbook saying that the only way to change at-will employment was by a written statement signed by the employee and a Hyatt officer was so broad that it implied that unionization was futile. The provision is probably similar to your company’s at-will policy:

I understand my employment is "at will." This means I am free to separate my employment at any time, for any reason, and Hyatt has these same rights. Nothing in this handbook is intended to change my at-will employment status. I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt's Executive Vice-President/Chief Operating Officer or Hyatt's President.

In order to retain flexibility in its policies and procedures, I understand Hyatt, in its sole discretion, can change, modify or delete guidelines, rules, policies, practices and benefits in this handbook without prior notice at any time. The sole exception to this is the at-will status of my employment, which can only be changed in a writing signed by me and either Hyatt's Executive Vice President/Chief Operating Officer or Hyatt's President.

Arbitration: Many employers have policies requiring employees to arbitrate disputes with the company. However, if the company policy says you are waiving your right to a class action, or if it otherwise prohibits employees from filing a NLRB complaint, NLRB says it violates the law.

No Discussion of Wages: Employers try to prohibit employees from discussing and comparing their wages. But prohibiting discussion of wages violates the NLRA. Employees must be allowed to discuss working conditions, including wages. That’s a really important right if, for example, you think you’re a victim of discrimination.

Nondisparagement: Does your company say you aren’t allowed to say negative things about the company, whether online or otherwise? Again, this probably violates your right to discuss working conditions.

Confidential Information: Most companies have a policy that you must keep confidential information confidential. But if that prohibition keeps you from sharing personnel information, revenues, expenses or training materials, it may also violate your right to discuss working conditions.

Social Media: If the company social media policy says you aren’t allowed to discuss or disparage the company in social media, that may well violate your right to complain about working conditions with coworkers. There have been a slew of cases where NLRB has recently found illegal firings due to Facebook postings and other social media issues. Policies that prohibit “offensive,” “demeaning,” or “inappropriate” comments are likely overbroad. Some states have passed laws against demanding your social media passwords, and there's federal legislation pending as well that may protect you from this type of intrusion.

So what do you do if you think your employer’s policies violate the law?

Your first step is to contact your regional office of the National Labor Relations Board. If they believe your employer is violating the law, they can talk you through filing a Charge Against Employer.

You have 6 months from the event or conduct to file. That means if your company comes out with a new policy, or if you are required to sign a form acknowledging your receipt of the handbook or agreement to the policies, you have six months from that date. You are entitled to have an attorney represent you before NLRB but you can’t recover your attorney’s fees if you win.

NLRB will investigate, which means they will interview you and you’ll have to sign an affidavit. They’ll also interview your employer and any witnesses. Then they’ll decide whether or not to issue a complaint against your employer. If they do, NLRB acts on your behalf to proceed against your employer. They will also help try to settle the case.

Unfortunately, your only remedies are reinstatement with back pay and back benefits if you were fired, plus an injunction to prohibit your employer from breaking the law in the future. NLRB might also require your employer to put up a poster advising coworkers of their rights.

The National Labor Relations Act is an under-utilized law protecting employee rights. Your employer may not understand that it applies to them. If you’ve been fired for violating one of these illegal policies, you may have a remedy.

Employment Law Blog Carnival Mother’s Day Edition

This month’s Employment Law Blog Carnival has lots of posts with great career tips - so good, your mother might give them to you. Although Mother’s Day has passed, it’s never too late to take guidance from mom.

Here’s the best employment law advice a mother can give, in the best employment law blogs a mother could want.  

Don’t Talk To Strangers

Instead of going on reality shows to meet strangers in a misguided attempt to find love, you meet the best mates doing what you enjoy. In Jon Hyman’s post, The Bachelor as discrimination? Publicity stunt lawsuit undermines legitimate discrimination claims, things didn’t go so well looking for love in all the wrong places. If only they’d listened to mom . . .  

Behave Yourself

If you didn’t behave as well as mom wanted (or if your employees didn’t), you might want to read Daniel Schwartz’s post, EEOC Releases Important Guidance on Use of Criminal and Arrest Records By Employers and John Holmquist's post, Asking the question: the EEOC's enforcement guidance on arrests and convictions.

Don’t Make Rude Gestures

Adam Whitney’s post, You’re Damned if You Fire an Employee Who Gives You the Finger tells you what you can (and can’t) do with an employee who loses a finger or flips you the bird.

Work Out Your Problems

John Fullerton's post, FINRA Rule 13803: Compelling Arbitration Claims to be Filed in Court, tells about yet another way employers and employees may work out problems.

If You Can't Say Anything Nice, Don't Say Anything

Ari Rosenstein and Eric Meyer talk about the downsides of social media in Social Media: Useful Tool or Employment Pitfall? and Report: Employees share WAY more Facebook info than they think
If only the people in their posts had listened to Mom.

Study Hard

Sometimes, no matter how hard you study, you won't do well. That's because there's something wrong with the test. In Jacksonville Firefighter Litigation Shows Perils of Using Improperly Validated Tests, George Leonard tells how one test went terribly wrong, and advises employers how to make sure promotion and hiring tests won't be thrown out.

A great example of someone who should have studied harder is in Mark Toth's How to Hire If You Want to Get Fired. Learn what not to do when interviewing candidates in a hilarious what-not-to-do video. Personally, I hope you all interview like this. It will make my job on the employee side way easier.

Mind Your Own Business

Philip Miles and Jessica Miller-Merrill tell us about legislation to keep employers from snooping into employee's passwords in SNOPA - Proposed Federal Legislation on Employer Social Networking Password Requests and US Bill Would Make Employer Requests for Facebook Access Illegal.
MYOB, nosy employers.  

In Reviewing Private Social Media Accounts as a Candidate Screening Tool: Dangerous, even with Policies & Procedures, Shaun Reid warns of the dangers of not listening to mom's good advice about snooping.

Family Is The Most Important Thing

In 6 Steps to Avoid Family Responsibilities Discrimination Claims, Dawn Lomer advises employers how to avoid getting in trouble when employees put family first.

Don't Lie

Mom's advice is particularly good when your lie ruins things for everyone else. If you lie about your need for Family and Medical Leave, you make it harder for everyone who really needs it.  Robin Shea does a terrific analysis of when an employer can fire an employee for lying about FMLA leave in When can an employer fire an employee for medical leave fraud?

Don't Hit

Mom would not be proud of all the boss-directed violence in the game I talk about in my post, Top Reasons Why Kick The Boss Is One of the Top Apps. Or maybe she'd be glad you have an outlet instead of violence.

90% of Life is Showing Up

Okay, that wasn't mom, it was Woody Allen. But as a mom, I tell my kids this all the time. Randy Enochs tells us about the importance of showing up to work, even with a disability, in 9th Circuit Discusses "Attendance" as Essential Function of Job in ADA Claim. [Note to faithful readers - no, you aren't hallucinating. This is a late edition to the ELBC, but a very worthwhile one. Mom would say, "Better late than never." I'm glad Randy decided to show up at ELBC!]


Be an Overachiever

I saved Robert Fitzpatrick for last because he definitely did mom proud this week. He asked me to post three of his posts in ELBC. Bob, you're putting us all to shame. Here they are:

(1) Proposed FederalLegislation to Prohibit Employers from Requiring or Requesting Access to SocialMedia of Employees or Applicants

(2) No Settlement Negotiations Privilege

(3) USERRA and the Escalator Principle

There you have it: all my favorite employment law bloggers in one handy spot. If you read them all, not only will mom be pleased you did your homework, but you'll come away with lots of useful knowledge (unlike when I studied the law against perpetuities).

From everyone here at the Employment Law Blog Carnival, here's hoping you had a wonderful and happy Mother's Day! If you follow all the tips and advice in these blogs, you'll spend way less time in court and have more time to spend with mom.

Arbitration Agreements - Yes Virginia, You May Have Given Up Your Rights

Arbitration agreements and waiver of right to trial pop up all over the place in employment situations. Some of the documents employers like to stick them to get you to sign away your right to sue are applications, handbooks, employment agreements, arbitration agreements, union contracts – just about any place they can think of to get you to sign without thinking.

Even if you have time to think about them, most states will let employers get away with making you sign away rights you thought were guaranteed in the constitution. Although there's a move afoot in Congress to change this, right now assume your arbitration agreement will be enforced.

If an employer presents you with an arbitration agreement or waiver of your right to trial pre-employment or during your employment, that’s the time to negotiate to make it go away. If the employer won’t negotiate, you can accept it or turn down the job. If they present it to you after you’ve accepted the job, most states will let them say, “sign it or be fired.”

I've seen employers argue that a page acknowledging receipt of the handbook (not having read it) is enough to bind the employee to an arbitration clause even though the handbook specifically said it wasn't a contract. Do they get away with this? Maybe.

Courts love arbitration agreements. It lightens their workload. Don’t expect help from the courts anytime soon. The remedy will have to be through Congress or your state legislature.

Here’s what you need to know about arbitration.

Arbitration defined: An arbitration where you submit your employment dispute to a neutral third party instead of the courts. Some arbitration is non-binding, that is, the parties can still go to court if they aren’t satisfied with the decision. But most arbitration is binding on the parties. That means you don’t even get to appeal an arbitrator’s decision under most circumstances.

Arbitrators: An arbitrator who handles employment arbitrations is usually a current or former employment lawyer, HR person, or other individual with experience in employment law matters. Arbitrators go through training on the process before they are approved to be on a panel. Depending on your arbitration agreement, you may have one or three arbitrators on your panel. You will usually have some input into the choice of your arbitrator. You will always be able to seek to remove them if they have a conflict of interest.

Rules: Most arbitration forums have detailed rules you need to follow throughout the process. Try to elect a forum, if you have a choice, that has employment rules (a great example is American Arbitration Association, which has separate rules for employment disputes), not just general commercial rules. Employment rules usually have some built-in due process protocols to protect individuals. Commercial rules are more geared toward businesses, and may assume the businesses are represented and experienced in arbitrations.

Discovery: Usually, arbitration relies on mutual exchange of documents, no depositions, and no full discovery that you’d get in courts. However, in employment situations, many arbitrators will allow limited discovery and depositions. It’s important to understand what will be allowed from the start of your process.

Costs: Who bears the costs is decided in the arbitration agreement or, if the agreement is silent, in the rules of the arbitration forum. If the rules require the employer and employee to split costs equally from the beginning, that’s a huge advantage for the employer. Remember, arbitrators have to be paid for their time. Most employees, especially unemployed ones, can’t afford to pay. The better way is to have the employer bear the costs from the beginning, then if the employee loses have them assessed with all or some of those costs at the end. But if your employer chose the forum and wrote the agreement, can you guess which way they’ll likely choose? If you have a lawyer representing you, they may be able to fight to get a fair apportionment of costs.

Time: The good news is, arbitration is usually quicker than a court case. The bad news is that there may be shortened deadlines for filing. Read your agreement and the rules very carefully.

Donna’s tips:

a. Arbitration has lots to offer as a form of alternate dispute resolution. It can save time and money, and the person making the decision is experienced in employment law. If there are due process protocols in place and a fair cost allocation, arbitration is nothing to fear.

b. Just because a proposed arbitrator handles primarily employer-side law, doesn’t mean they’ll be bad on your case. Most arbitrators take their position as neutrals very seriously. I’m an arbitrator who also happens to be a lawyer representing primarily employees, and I’ve ruled for management in some of my arbitrations. I've seen management-side lawyer/arbitrators rule for employees. Go for experience, a balanced resume, and if you can, look at some prior decisions before you make a decision on which arbitrators to strike from your panel.

c. Sometimes both sides hate the arbitrator choices the forum offers. Both sides can agree on an arbitrator they like outside the agreed forum.

d. Most objections you hear in court won’t apply to arbitration. Arbitrators can hear irrelevant evidence and all sorts of evidence and testimony that would be inadmissible in court. They tend to err on the side of allowing more, rather than less, information.

e. You don’t have to be represented in arbitration any more than you have to be represented in court. Still, if you can find a lawyer who handles employment arbitrations you’re better off than going it alone in most cases.