Franken Amendment passes both houses of Congress

Posted on December 18, 2009 by Richard Renner

Sen. Al Franken's amendment to bar use of mandatory arbitration agreements by defense contractors has now passed both houses of Congress.  Franken introduced his amendment in response to Halliburton/KBR's treatment of Jamie Leigh Jones. When Jones was 19, she began working for a Halliburton subsidiary, and had to sign employment papers that she did not understand. One of those papers contained an arbitration clause that required her to use arbitration, instead of a court or jury trial, for any claims arising from her employment.  In Baghdad, Iraq, her KBR co-workers drugged and raped her.  Halliburton confined Jones in a storage container without food or water until a guard allowed her to borrow a cell phone.  Her call to her father prompted State Department action to get her released.  Halliburton also took possession of the rape kit administered by a U.S. Army doctor.  Halliburton held it for two years and it was damaged when finally recovered.

Halliburton has stalled Jones' lawsuit for rape, sexual harassment, wrongful imprisonment and other claims by using its pre-employment mandatory arbitration agreement.  Sen. Franken's amendment would prohibit big defense contractors from using pre-dispute mandatory arbitration agreements with their employees in Title VII discrimination claims, or in tort claims for sexual assault and harassment, wrongful imprisonment, negligent hiring and some other claims.

In October, the Senate passed the Franken Amendment by a vote of 68 to 30. This week, a House-Senate Conference included the Franken Amendment in the final Defense Appropriate bill.  That bill has now passed the House by a vote of 395 to 34. Early this morning the Senate passed a cloture vote, by 63 to 33, clearing the way for final Senate approval.

With this Congressional affirmation of and employee's right to seek redress in court, it is now time for Congress to pass the Arbitration Fairness Act (AFA), H.R. 1020 and S. 931.  With the AFA, no employer could take away an employee's right to go to court.  Please check how your legislators voted with the links above.  If they voted yes for the Franken Amendment, thank them and ask them to co-sponsor the AFA.

The full text of the final Franken Amendment is available here from MinnPost.com.  Here is the main text:

SEC. 8116. (a) None of the funds appropriated or otherwise made available by this Act may be expended for any Federal contract for an amount in excess of $1,000,000 that is awarded more than 60 days after the effective date of this Act, unless the contractor agrees not to:
(1) enter into any agreement with any of its employees or independent contractors that requires, as a condition of employment, that the employee or independent contractor agree to resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention; or
(2) take any action to enforce any provision of an existing agreement with an employee or independent contractor that mandates that the employee or independent contractor resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.

The amendment has a provision to cover subcontractors after 180 days from the Act's effective date.  It also has exceptions for contracts that may not be enforced in U.S. courts, and for contracts certified by the Secretary of Defense as needing the exception for national security.

Sen. Franken issued the following statement about the conference report:

 

“Jamie Leigh Jones is a strong, courageous woman, who used her own horrific experience to inspire change. I am honored to know her, and honored to have been a part of her cause. I came to Washington to stand up for folks like Jamie Leigh, and stand up to the powerful interests that too often silence their voices. I was gratified to see so many of my colleagues in Congress and so many national civil rights leaders join in this effort. The Jamie Leigh Jones amendment is on its way to becoming law thanks to their work, the work of Chairman Inouye, and the work of the White House. I’m pleased that together, we were able to find a solution that allows victims of assault and discrimination their rightful day in court.”

Cora L. Ganzglass of the National Association of Consumer Advocates (NACA) and Donna Lenhoff of the National Employment Lawyers Association (NELA), deserve thanks for tireless work in advocating for this amendment.

President Obama has now signed the Defense Appropriation Act into law.  Here is a link to the Legal Times article about the Franken Amendment becoming law.
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Cliff Palefsky testifies on mandatory arbitration

Posted on September 17, 2009 by Richard Renner

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San Francisco attorney Cliff Palefsky testified on Tuesday about the need for legislation to protect workers from losing their right to trial by jury through employer-imposed pre-dispute binding arbitration agreements.  Palefsky testified to the House Judiciary Committee on behalf of the

National Employment Lawyers Association (NELA)

, and a copy of his testimony is now available. The Committee is currently considering the Arbitration Fairness Act of 2009, HR 1020, which would prohibit employer-imposed arbitration agreements from having any effect on employment discrimination and retaliation claims that arise after the agreement is signed.  Too many whistleblowers have lost their right to a trial by jury because of employer policies that require employees to sign away this right as a condition of employment.  Hopefully, Congressional action passing this bill will restore the right to trial by jury for whistleblowers and for all of America's working men and women.


 

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Arbitration Fairness Act and the Supreme Court

Posted on June 17, 2009 by Richard Renner

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On Monday, the Supreme Court granted cert in the case of Stolt-Nielsen S.A. v. Animalfeeds International Corp. The court will determine whether class arbitration is consistent with the Federal Arbitration Act (FAA) when the arbitration agreement is silent on the issue. This case highlights the current legislative drive for the Arbitration Fairness Act, a proposal that would protect consumers and employees from binding mandatory pre-dispute arbitration agreements. The issue is particularly important to whistleblowers who often have no idea about the illegality they will confront at the time the employer requires them to sign such an agreement.

Rep. Hank Johnson (D-GA) recently introduced the Arbitration Fairness Act of 2009, which would amend the FAA to prevent the use of pre-dispute mandatory arbitration clauses in consumer, employment and franchise agreements. One of the top priorities of the Act is to ensure that the decision to arbitrate is truly voluntary, after an individual understands the nature of the claim to be arbitrated.

Consumer and workers rights advocates are pushing for this legislation to eliminate the power of corporations to impose mandatory pre-dispute arbitration clauses in non-negotiable contracts.
Arbitration is a private system without an impartial judge, jury, or meaningful appeal. Outside of California, there is no public disclosure of arbitration decisions to ensure that justice was carried out. The qualifications for arbitrators are minimal, and powerful organizations typically have the resources to know how a particular arbitrator will rule before that arbitrator is chosen. Arbitrators are necessarily mindful of which party will be employing more arbitrators in the future.

Public Citizen, a consumer advocate organization, released a report that examined the use of binding mandatory arbitration by credit card issuers in California. Looking at approximately 34,000 cases over eight months, Public Citizen found that consumers filed only 118 of the cases, while corporations chose the forum in 99.6 percent of the total cases. In terms of results, the report found that consumers lose to companies in arbitration proceedings between 96 and 99 percent of the time.

It is essential that consumers and employees, whistleblowers included, have the option to choose arbitration or not. Forced arbitration agreements strip individuals of their legal rights, and ultimately deprive them of equal justice under the law.

There are several steps you can take to support the Arbitration Fairness Act of 2009. You can use this link to contact your local representative:

http://action.citizen.org/t/9119/campaign.jsp?campaign_KEY=27031

Here is a link to sign the Fair Arbitration Now Coalitions’ petition:

http://action.citizen.org/t/9119/petition.jsp?petition_KEY=1904

The Stolt-Nielsen case is Case No. 08-1198 in the Supreme Court, and the Court’s docket sheet for the case is available.
 

 
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