Monday, October 13, 2008

Your job or your rights.

Paul Bland, one of the real warriors in the ongoing battle against the forces that are trying to eliminate the equalizing effects of the 7th Amendment's right to trial by jury by sending every dispute to arbitration, is once again sounding an alarm regarding the force-feeding of arbitration clauses to employees. Bland, a Staff Attorney with Public Justice (formerly Trial Lawyers for Public Justice), writes about trading your constitutional rights for a job on Today's Workplace, a blog with a worker-friendly perspective. In the post, he makes a beautiful point (one among many, actually) about the Hobson's choice facing many employees who are told they can either give up their right to have disputes with their employer heard in court by a jury, or give up their job. Bland writes:

The U.S. Supreme Court has repeatedly said that a cornerstone of arbitration is that it’s voluntary, and consensual. The Court sees nothing involuntary about telling a long-time employee that they have to sign a binding arbitration clause or lose their job. “After all,” the argument runs, “they could always choose to work for someone else.” This argument is pretty empty for most employees. It’s only a short step from that to saying that someone who signs an arbitration clause at gunpoint has made a voluntary choice – “hey, they could have chosen to be shot.”

Well put. Perhaps it really does depend on what your definition of "consent" is? Given the reality that trading a jury trial for an arbitration swaps an open, publicly transparent dispute resolution forum for a secret, expensive tribunal in which the deciders are hoping to become repeat customers of one of the parties (that's the employer, in case you're wondering), it seems amazing that anyone could see the choice facing most employees as anything but the equivalent of a shotgun wedding. It's a point worth considering, particularly in these trying economic times. Read the full article here. Check out the rest of the blog while you're there - some great stuff on the site for employees.


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