Arbitration Fairness Act (AFA), H.R. 1873 and S. 987

Posted on October 25, 2011 by Richard Renner

Forced arbitration is when employees faced with an issue at work are forced to have an arbitration instead of being able to go to court with a fair judge and jury. Often times, as a condition of employment, employers will not hire a worker, or could possibly fire a worker, unless they “consent” to an arbitration clause. Other times it is just assumed that employees agreed to it if they continue to work for their employer after an arbitration policy is announced.

Arbitrators are not judges. They do not need to know the law or have any relevant experience. Even though the arbitrators are not judges, their decisions are final. Also, there are no appeals for arbitrator decisions. They do not have to justify their decisions and the process takes place behind closed doors with no public record. The arbitrators charge parties for their services and often work for the same employer numerous times, tipping the odds significantly in the favor of the employer. One arbitrator and retired trial judge even stated, “You would have to be unconscious not to be aware that if you rule a certain way, you can compromise your future business.”

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Senate Committee marks up and approves a weak WPEA

Posted on October 19, 2011 by Richard Renner

This morning, the Senate Homeland Security and Government Affairs Committee (HSGAC) marked up and approved S. 743, the Whistleblower Protection Enhancement Act (WPEA). The WPEA has been pending for years. Its expressed purpose is to strengthen protections for  whistleblowers. As sponsor Sen. Daniel Akaka (D-HI) explained, if whistleblowers are not protected, many would not take the risk to protect public health and national security. Since the 1994 adoption of the Whistleblower Protection Act, the Merit System Protection Board (MSPB) and the Federal Circuit Court of Appeals have ruled in favor of only three whistleblowers out of hundreds of cases. Sen. Akaka decried the failure to interpret the law consistent with its purpose. Sen. Susan Collins (R-ME) also spoke about the "crucial role" that whistleblowers play.

The mark-up hearing took up less than five (5) minutes of the Committee's one-hour hearing. During the hearing, Sen. Akaka announced that he had an amendment to make three changes that he called "minor." He described the amendments as (1) clarifying provisions on non-disclosure agreements, (2) giving the General Accounting Office (GAO) more time to conduct its review of the legislation, and (3) giving the Defense Department access to information and consultation rights in the intelligence provisions. The amendment, and the bill, were both approved by the Committee unanimously, on voice votes. Unfortunately, the text of the amended bill is not presently available to the public. The normal course of business would make the amendment available at www.thomas.gov, but it is not presently listed in the bill's summary and status page. To see the Committee's hearing on the WPEA, go to the 47th minute of the archived video.

The National Whistleblowers Center (NWC) submitted a letter to HSGAC on September 28, 2011. This letter raised twelve concerns and makes suggestions for how to make the WPEA truly effective in protecting federal employee whistleblowers. The Committee did not adopt the NWC suggestions. For example, the bill still contains a new provision allowing MSPB judges to dismiss whistleblower cases without a hearing.

NWC has also released a report called Detecting Waste, Fraud, and Abuse: Protections Needed for Federal Employees. The report details how whistleblowers save taxpayer funds and protect the public health, the environment and our integrity as a nation. Hopefully, further consideration of this bill by the full Senate and House will lead to the improvements. Federal employees need protections that are effective enough to encourage them to come forward.

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