Outten & Golden: Empowering Employees in the Workplace

Archive for the ‘Arbitration Fairness Act’ Category

Employers: Be Careful What You Wish For - Your Motion to Compel Arbitration Can Lead to Expensive, Class-Wide Arbitration

Thursday, December 27th, 2012

In the wake of ATT Mobility v. Concepcion and Stolt-Nielsen v. AnimalFeeds,* many employers have sought to enact new arbitration agreements or to enforce arbitration provisions in older agreements to eliminate their employees’ ability to come together when seeking to vindicate their rights to enforce statutory protections for workers. Employers should be careful what they wish for, in seeking to compel arbitration. They may indeed wind up in arbitration – but unable to strike class allegations, and required to pay the full and exorbitant costs of class-wide arbitration. 

In a case on which Bryan Schwartz Law serves as local counsel for Richard J. Burch of Bruckner Burch, in Houston, Texas, the employer is now feeling the danger of a Stolt-Nielsen-based strategy seeking to compel individual arbitration in a putative, wage-hour class action. In the Laughlin v. VMWare case, in which VMWare employees assert they were misclassified as exempt employees and denied overtime and other compensation to which they were entitled, the company moved to compel arbitration based on an agreement which did not specifically provide for class-wide arbitration. 

Judge Edward Davila of the Northern District of California struck some of the more offensive provisions of the arbitration agreement under Armendariz v. Foundation Health Psychcare Services (2000) 24 Cal.4th 83, such as a provision which would have required Plaintiff to share the costs of arbitration. However, Judge Davila found these unlawful provisions severable (i.e., refused to kill the whole arbitration agreement). Perhaps most importantly, though, Judge Davila referred to the arbitrator the decision on the Stolt-Nielsen argument – namely, as argued by VMWare, the notion that class-wide arbitration cannot proceed where the parties’ arbitration agreement did not expressly consent to class arbitration. His initial decision from early 2012 is available here: 

http://www.bryanschwartzlaw.com/VMWare.pdf

In arbitration, AAA arbitrator LaMothe then rejected the employer’s Stolt-Nielsen motion to strike class allegations, notwithstanding the fact that the agreement did not expressly give permission to bring class allegations, finding the parties’ agreement intended to encompass all claims by Plaintiff Laughlin, including her class claims. The AAA order is available here: 

http://www.bryanschwartzlaw.com/Laughlin.pdf

In the last 18 months, numerous other arbitrators from JAMS, AAA, and other nationwide arbitration services have likewise denied motions to strike class allegations, employing similar reasoning. 

On review, Judge Davila confirmed the arbitrator’s partial final clause construction award allowing class allegations to proceed, meaning – in light of all the foregoing – that VMWare will now be forced to arbitrate a putative class action, and will be forced to bear all of the costs of doing so: 

http://www.bryanschwartzlaw.com/VMWare-12-20-12.pdf

Be careful what you wish for, employers. You may find that sometimes, allowing employees their day in court is better than the alternative. 

DISCLAIMER: Nothing in this article is intended to form an attorney-client relationship with the reader. You must have a signed representation agreement with the firm to be a client. 

*See our numerous prior blog posts relating to the subject of arbitration class waivers in light of Concepcion andStolt-Nielsen, including: http://bryanschwartzlaw.blogspot.com/2012/09/california-supreme-court-grants-review.html

http://bryanschwartzlaw.blogspot.com/2012/09/wage-and-hour-class-actions-sky-is.html;

http://bryanschwartzlaw.blogspot.com/2012/01/landmark-decision-by-national-labor.html

http://bryanschwartzlaw.blogspot.com/2011/05/civil-rights-lawyer-and-employee.html.

This post was originally posted on December 26, 2012 on Bryan Schwartz Law. Reprinted with Permission.

About the Author: Bryan Schwartz is an Oakland, CA-based attorney specializing in civil rights and employment law.

Caught In a Fixed Game: The Struggle for Consumer and Employee Rights in the Forced Arbitration Process

Wednesday, July 13th, 2011

Andy PictureRecently, forced arbitration clauses have spread into a wide variety of contracts that regular citizens ordinarily enter into. These include both consumer contracts, such as those for cellular phone service plans, and employment contracts signed at the start of a new job. Obstacles to fair and impartial dispute resolution are manifold in this coerced dispute resolution process. The largest issue is that the arbitration forums rely on the repeat business brought in by the companies who use their services. As result, there is a systemic disincentive to rule in favor of consumers and employees if companies can choose another arbitrator if they deliver multiple rulings adverse to the corporation. Beyond this, there are frequently problems with the technical details of how disputes are resolved. High fees involved in the arbitration process often dissuade employees and consumers from bringing their cases at all. Arbitrators, unlike judges, are not bound to follow any legal precedent and discovery is much more limited in arbitration.

The usual solution to corporate malfeasance on a large scale is a class action lawsuit. However, most forced arbitration clauses contain language banning class actions. Public Justice recently litigated this issue to the Supreme Court in the AT&T Mobility v. Concepcion case, arguing for the right of consumers and employees to join together in spite of arbitration agreements that forbid class action suits. The plaintiffs in the original case were supported by a California law that prohibited class action bans in contracts, but in a 5-4 vote the court ruled in favor of AT&T and held that the Federal Arbitration Act of 1925 preempts state laws that prohibit contracts containing forced arbitration clauses. However, as Public Justice has pointed out, the ruling does not necessarily mean the end of all class action lawsuits when forced arbitration is involved.

In some factual situations, it is arguable that the AT&T Mobility v. Concepcion decision is not applicable. In the context of the insurance industry for example, many courts have held that the Federal Arbitration Act does not affect state laws which ban arbitration of disputes in this area (which would prevent Concepcion from being considered relevant precedent). The National Arbitration Forum, previously listed in many forced arbitration clauses, has been banned from arbitrating consumer disputes. As a result, many courts have simply eliminated the requirement of arbitration where the National Arbitration Forum is specified in the clause. Additionally, the Concepcion decision does not apply in cases where there is no contract involved, since there is no clause to require forced arbitration.

The AT&T Mobility v. Concepcion decision is also limited in several general ways. Consumers and employees can still bring a class action lawsuit under a federal statute (like an antitrust law), even when confronted with a forced arbitration clause. Furthermore, it’s possible that the ruling will not be applicable in state courts since Justice Thomas has expressed a belief that the Federal Arbitration Act does not apply in these forums (and one vote on the divided court would change the ruling on this issue). Also, a key part of the reasoning of the court in the Concepcion decision was the idea that the law at issue would require AT&T, without its consent, to arbitrate disputes filed against the company on a class action basis. However, there are some situations in which both parties do consent to a class action, thus creating a precedential distinction away from Concepcion (see Public Justice’s brief on the issue in Schnuerle v. Insight Communications). Finally, the state law struck down in Concepcion was of a broad nature, and did not take into account whether individuals had a meaningful prospect to pursue their claims in spite of the contract ban on class action suits.

Although forced arbitration is a troubling issue, it is not an unsolvable problem. Legislation can be used to conclusively forbid the practice, something Congress has done on several occasions within certain areas. In the recent economic stimulus bill (Section 1553 of the American Recovery and Reinvestment Act, H.R. 1), Congress forbade contractors or state and local governments who received stimulus funds from requiring pre-dispute forced arbitration for whistle-blowing employees (with the exception of cases that occur under a collective bargaining agreement). Within the Department of Defense Appropriations Act for 2010 (H.R. 3326), the Franken Amendment prohibited contractors or subcontractors receiving these funds from using forced arbitration to resolve Title VII or sexual assault tort claims.

Although there has been some success in Congress in reducing forced arbitration, legislation to eliminate the practice generally has not yet been enacted. The Arbitration Fairness Act was introduced in 2007 and 2009 to curtail the use of such clauses, but failed to pass. The Act was recently introduced again in Congress in response to the AT&T Mobility v. Concepcion decision by Senator Al Franken (D-Minn.), as well as Senator Richard Blumenthal (D-Conn.) and Representative Hank Johnson (D-Ga.), to prevent the use of binding forced arbitration clauses in consumer and employment contracts. Entitled the Arbitration Fairness Act of 2011, it is an effort by Congress to try and curb the practice of pre-dispute forced arbitration by amending the Federal Arbitration Act directly to prohibit the practice. The Act adds a new chapter in Title 9 of the United States Code, with section 402(a) of the bill succinctly describing the purpose of the legislation: “In General – Notwithstanding any other provision of this title, no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment dispute, consumer dispute, or civil rights dispute.”

When a contract clause can be used to take away the power of non-union employees to protect something as basic as their civil rights in open court, it should give pause to both judges and Congress. Forced arbitration can eliminate perhaps the most essential tool an ordinary citizen has in seeking justice: a fair and impartial court system. Its spread must be halted through both legislative and judicial action, to protect the right of consumers and employees to have their day in court.

About the Author: Andrew Laine is a law student and intern at Workplace Fairness.

Will the Supreme Court Issue a Wildly Activist Decision in AT&T Mobility v. Concepcion?

Friday, August 6th, 2010

6a00d83451b7a769e20133f2de36e3970b-500wiThe consumer and civil rights communities are closely watching AT&T Mobility v. Concepcion, a case that will be argued in the Supreme Court this November.  Depending on how broadly the Court reads the question presented in Concepcion, the case could decide the fate of consumer and employee class actions for years to come.

The Corporate Abuse at the Heart of Concepcion

The Concepcion case involves the widespread corporate practice of using standard-form contracts to ban class actions.  Many state courts have held such class-action bans unenforceable, but AT&T Mobility (“ATTM”) has asked the Supreme Court to find that at least some of that state law is preempted by the Federal Arbitration Act (“FAA”).  To understand why the Court’s holding in Concepcion could be so significant, it is important to understand how class-action bans come to be and why they are often disastrous for consumers and employees.

Class-action bans are contract terms that purport to prevent consumers and employees from ever participating in class proceedings.  As in Concepcion, they are often buried in companies’ standardized arbitration clauses.  Class-action bans favor companies at consumers’ and employees’ expense, but companies can impose them unilaterally because they draft the contracts.  Consumers and employees rarely have time to read the lengthy agreements companies send them, let alone the ability to understand their dense legalese.  And even if they did, few consumers or employees could negotiate the contracts’ terms.

Companies love imposing class-action bans because they dramatically undermine enforcement of consumer- and employee-protection laws.  Unlike European countries which mostly rely on large and powerful government agencies to enforce consumer protection and civil rights laws, the U.S. has relatively small government agencies which handle relatively few cases.  Most enforcement of these laws in the U.S. is done by private parties.  We rely upon individual consumers or employees who’ve been cheated or discriminated against to bring cases enforcing these laws.  Many types of illegal behavior can be addressed through individual cases by a single consumer.  But the reality is that many types of illegal behavior that harm very large numbers of people – thousands, sometimes hundreds of thousands of individuals – can only be meaningfully addressed through class actions.

In many circumstances, very few individuals would ever bring a claim (in court, or in a small claims court, or in arbitration) when their rights are violated.  For a huge percentage of the population, for many types of illegal activities there are realistic barriers to individuals bringing cases on their own.  Many people never realize when their rights are violated, for example, and many people do not have the knowledge or skills to begin to pursue a case to protect their rights.  For those who know to seek out a lawyer, very few lawyers will handle cases that are quite small, and few if any lawyers will handle fairly complex cases that involve only a few thousand dollars.  These are only a few examples of situations where the realistic situation is that a case will either be handled on a class action basis or it will never be brought at all.

This is why large corporations are hoping that the Concepcion case will wipe away most class actions – because they want to make it impossible for the vast majority of cheated consumers and employees who’ve suffered discrimination to bring any kind of case, in any forum.  The idea is to atomize individuals, to prevent them from grouping together in a way that lets them enforce these rights.

WILL CONCEPCION BE SIGNIFICANT?

In the worst case scenario, Concepcion could wipe away the vast majority of consumer and employee class actions for years to come.  But that result is far from inevitable.  For one thing, ATTM submitted a narrow question in its petition for certiorari, and if the Court sticks to the question presented (as it should), then the decision may not have much significance.  On the merits, if the Court agrees with the overwhelming majority of lower courts, which have held that state law in this area is not preempted, then the decision should not have much significance.  Indeed, if the Court simply applies the language of the FAA, and doesn’t invent new rules of federal law for the purpose of wiping away state law, then the decision should not be significant at all.

If many members of the corporate defense bar get the Court to use this case to grant their fondest wishes for immunity from consumer protection and civil rights laws granted, however, then this case could have the kind of impact on class actions that an asteroid landing in Mexico millions of years ago had on dinosaurs.

For the Court to Wipe Away Consumer and Employee Class Actions, It Will Have to Ignore ATTM’s Question Presented.

Most cases, including Concepcion, get to the Supreme Court because the party that lost below files a petition for certiorari, presenting specific questions for the Court to review.  In Concepcion, ATTM took care to draft a narrowly worded question.  Essentially ATTM asked: does the FAA preempt state law prohibiting class-action bans in those cases where class actions are unnecessary for the effective vindication of consumer and employee rights?

This question may sound convoluted, and it is.  The last part asks the Court to assume that individual consumers and employees can vindicate their legal rights without a class action.  It’s striking that ATTM asks the Court to begin with this assumption as though it were an uncontroversial and obvious abstract legal principle instead of a factual issue to be resolved on a case-by-case basis in light of actual admissible.2 In any event, if the Court limits its holding in Concepcion to the question presented, then whatever that holding is, it should not apply whenever class actions are necessary for the effective vindication of statutes aimed at protecting consumer and employee rights.

But notwithstanding ATTM’s narrowly worded question, some of its corporate allies (and particularly the U.S. Chamber of Commerce) are claiming that Concepcion raises the issue of whether the FAA preempts any and all state law that would limit class-action bans embedded in arbitration clauses—regardless of whether consumers and employees have other adequate avenues for vindicating their rights.  These ATTM allies argue that it does not matter what the evidence in a case would show, that it does not matter what the state law at issue says, and that there is simply a federal right for any corporation to put in any contract a term that bans class actions (so long as the contract includes an arbitration clause).

It’s unlikely that the Supreme Court will be tempted to take such an extreme position.  But at this point, it is clear that advocates for unlimited corporate power hope and imagine that the U.S. Supreme Court will strip state law in this way.  And it’s clear that a lot of corporate defense lawyers privately believe that the Court is so definitively in their clients’ collective pocket that companies can get whatever they want from this case.  I’ve heard several defense lawyers privately predict a 5-4 ruling that wipes away the vast majority of class actions in America, and I know of several cases that had been in mediation, where the evidence of liability is overwhelming and the only barrier to a recovery for the consumers was a class action ban that’s unenforceable or probably unenforceable under state law, where defendants have walked away from the settlement table because they suddenly believe that the Court will uphold class-action bans in all cases and immunize them from any meaningful liability.

You have to hand it to the tort reforming corporate apologists:  they are asking the Court to issue a decision that would be an immediate candidate for Most Activist Decision Ever

For the Court to Rule for ATTM, It will Have to Sweep Aside a Widespread Consensus of State Supreme Courts and Federal Appellate Courts

More than 100 reported cases have considered the enforceability of class-action bans embedded in arbitration clauses.  While their holdings on enforceability vary, more than 90% have agreed that state law governs the enforceability issue—that courts are free to apply to state law to determine whether a class action ban in an arbitration clause is enforceable.

Many corporate defendants have argued (like ATTM) that the FAA preempts state law limiting the enforcement of class bans embedded in arbitration clauses, but scores of courts have strongly disagreed.  A typical example is a 2007 Washington Supreme Court case called Scott v. Cingular Wireless, where ATTM was also the defendant.  ATTM argued that even if a ban on class actions would be illegal in other contexts as a matter of Washington law, the FAA preempted Washington law in Scott because the company had put its class-action ban in its arbitration clause.  Like most courts, the Washington Supreme Court rejected the argument, concluding that the FAA only preempts state laws that are aimed at arbitration, and that the state’s law against contract terms that gut the state’s consumer protection laws are not aimed at arbitration:

[C]ontracts that effectively exculpate their drafter from liability under the [Consumer Protection Act] for broad categories of liability are not enforceable in Washington, even if they are embedded in arbitration clause . . . .  Class action waivers have very little to do with arbitration.3

A large number of other courts have articulated this same conclusion in very similar ways.4

State Supreme Courts all agree on this issue.  Every single state supreme court to consider the enforceability of a class-action ban embedded in an arbitration clause has resolved the question of enforceability as a matter of state law.5 The last eight state supreme courts to consider the validity of class bans also happen to have struck them down, but even courts that have upheld class bans have done so by applying state law.6 In addition to state supreme courts, intermediate courts of appeal in a number of states have struck down class action bans under state law,7 as have federal circuit courts, which have examined the issue as one of state law.8 Given this settled nationwide consensus, it is puzzling that the U.S. Supreme Court decided to grant certiorari in Concepcion.

FOR THE COURT TO ADOPT THE  CHAMBER OF COMMERCE’S FANTASY SCENARIO, It WILL HAVE TO INVENT ALL NEW FEDERAL LAW

The corporatist idea that the FAA preempts all state law limiting class-action bans hasn’t caught on in the lower courts because there is no serious legal or intellectual basis for it.  If the Supreme Court decides to completely federalize the law in this area, it will have to invent from whole cloth new federal law that is not supported by anything in the language of the FAA or in its history.9

During their confirmation hearings, conservatives like Chief Justice Roberts and Justice Alito solemnly assured the Senate Judiciary Committee that they would bring a very humble approach to their jurisprudence if they were confirmed to the Supreme Court.  They weren’t the kind of guys to throw out precedents, make up new laws, or ignore history.

But if a majority of the Court plays Santa Claus for lawbreaking corporations in the way the Chamber wants, it will have done so only by tossing all of those promises overboard.

Consider these facts:

  • Because the FAA does not contain any express preemption provision, and does not preempt the field of arbitration, it preempts state laws only if they conflict with the purposes of the Act.10 This is important because the latter type of preemption is called implied conflict preemption, and Justice Thomas is on record as saying that the Court should be extremely reluctant to find implied conflict preemption based upon frustration of purpose.11 In light of Justice Thomas’s strong principled stand on this point, it is puzzling that a number of corporate defense lawyers privately claim to be so certain that Justice Thomas will vote for a broad FAA preemption position in Concepcion.
  • The only language in the FAA that relates to the question presented in Concepcion strongly supports the idea that the statute does not preempt state law.  The FAA’s key provision, section 2, provides that agreements to arbitrate will be enforceable only if three criteria are met:  (1) there is an agreement to arbitrate; (2) the agreement falls within interstate commerce; and (3) the agreement is not counter to laws that would lead to revocability of any contract.  9 U.S.C. § 2.  This last criterion necessarily refers to state law because contract law is generally comprised of state law and has been for a very long time.  What corporate defense lawyers want is for the court to cross out this last requirement, whenever it would apply to a contract term banning class actions that is inserted into an arbitration clause.  In other words, the corporate defense bar can only get what it wants from this case if the Court invents some rule to cross out that language whenever a class action is involved.  This is a pretty activist proposal, to put it mildly.
  • When the FAA was passed in 1924, there were no such things as class actions.  Congress could hardly have intended to preempt a body of state law relating to something that didn’t exist.12 And if the class procedure created some conflict with the FAA, one would have expected Congress to mention it in 1967, when it approved Federal Rule of Civil Procedure 23 and expressly authorized class actions.
  • Another line of case law leads to the same conclusion.  When a statute does not address a topic, the U.S. Supreme Court normally has held that there is no preemption with respect to that topic.13 Here, we know that the FAA does not address class actions because the Supreme Court has said so:  “the FAA itself contains no provision designed to deal with the special practical problems that arise in multi-party contractual disputes when some or all of the contracts at issue include agreements to arbitrate.”14
  • The state laws that corporate defense lawyers want the Court to strike down in Concepcion are well-established laws of general application.  They are laws and common-law doctrines, like the rule that exculpatory get-out-of-jail-contract-terms that undermine statutes are unconscionable, that do not mention arbitration, do not target arbitration, and have nothing to do with arbitration—all of which makes it hard to explain why they might conflict with the Federal “Arbitration” Act.
  • A few examples help to make this point.  In pretty much every state, an employer would be prohibited from writing a contract with an employee that says “we can fire you because of your race or gender, or pay you less if you’re a woman or African American, and none of the civil rights laws apply to you.”  Similarly, a corporation would be prohibited from writing a consumer contract that says “we can violate the Truth-in-Lending Act, your state consumer protection act, and other consumer laws.”  These provisions have nothing to do with arbitration, but they would be held unenforceable under the same set of state contract laws that courts have applied to class-action bans—laws that prohibit unfair and exculpatory contracts (i.e., contracts that immunize defendants from basic laws protecting civil or consumer rights).  Similarly, the law from around the nation demonstrates that a number of states have case law striking down class action bans in cases that do not involve arbitration clauses.15
  • State contract laws prohibiting exculpatory contract terms existed for many years before the FAA passed, and the roots of these doctrines track back to the British common law.  No one in the 1924 Congress ever suggested that the FAA was intended to preempt this body of state law and that Congress would have been shocked to hear that it was tossing these laws overboard.  The 1924 Congress intended the FAA to make arbitration clauses as enforceable as other contracts, not as a means of “laundering” otherwise illegal contract terms.16
  • Some corporate defense lawyers argue that class action bans are different from other contract terms that can have an exculpatory effect, because the class action is only a “procedural” device.  The idea here is that a contract term might be illegal if it openly says that it’s exculpatory, but it’s okay if it reaches the same exculpatory end through an indirect and “procedural” path.  Most state courts laugh off this formalism and hold that state laws also strike down contract terms that are effectively exculpatory, even if not explicitly so.  Consider another example:  if an employer’s contract said “you can bring a discrimination claim but only if you pay $1 million to an arbitrator, travel to New Zealand, and arbitrate on Leap Day” no reasonable court would uphold the contract because these effectively exculpatory requirements are arguably merely “procedural.”
  • The Supreme Court has said a number of times that arbitration clauses are only enforceable under the FAA if they let people “effectively vindicate their statutory legal rights.”17 The Court will have to re-write or ignore those decisions if it’s going to find that the FAA preempts state contract laws that insist that contract terms may not bar individuals from effectively vindicating their rights.  For the Chamber what it wants, the Court will have to manufacture a conflict between state law and one of the core principles the Court itself has repeatedly found to be a central premise of the FAA.  It will have to say something that amounts to the equivalent of “the FAA requires that parties must be accorded the formal power to theoretically vindicate their individual rights, but corporations have a newly minted federal right to gut any laws protecting against widespread violations of civil or consumer rights.”
  • State law recognizing the importance of class actions for vindicating consumer and employee rights is also entirely consistent with the decisions of the U.S. Supreme Court.18 It’s hard to see how a state contract-law doctrine is in conflict with federal law when the doctrine, as applied to class-action bans, recognizes something that’s set forth in a number of the Supreme Court’s decisions.

For the U.S. Supreme Court to say, in effect, “the usual longstanding rules barring exculpatory clauses are erased by federal law if the contract term that is exculpatory is a class action ban embedded in an arbitration clause” would be a pretty radical ruling.  Almost every court in the U.S. has blinked and stepped away from that abyss.  Will the Supreme Court be the first to go the other way?

THE STAKES IN CONCEPCION

The Supreme Court’s decision in Concepcion probably won’t be that significant.  There are a number of ways that the Court could decide this case narrowly and make law that doesn’t change the legal landscape one way or the other.  The stakes in the case might be enormous, however.

There are some powerful corporations who are sick and tired of occasionally being taken to task when they get caught violating civil rights and consumer protection laws on a widespread basis.  These corporations want a new federal right to strip their employees and customers of their rights to ever bring class actions, no matter what state law provides or no matter how egregious the facts.

If these corporations get what they want – a very huge “if” – then America will experience the biggest contraction of private enforcement of consumer protection and civil rights laws since those laws were enacted.

Will the majority of the Court abandon the humble role of umpire to invent sweeping and radical new law?  Will scores of state and federal appellate cases be disregarded?  Will the FAA be re-written, widely expanded, and put on an inevitable collision course with congressional intent?  Or will the Court step back and do the right thing?  No one will know for sure until the Court decides Concepcion next spring.

End Notes:

1. Author’s: Paul Bland and Claire Prestel are Attorneys at Public Justice.  Melanie Hirsch is the Brayton-Baron Fellow at Public Justice.

2.    The precise question presented in Concepcion is as follows:

Whether the Federal Arbitration Act preempts states from conditioning the enforcement of an arbitration agreement on the availability of particular procedures – here, class-wide arbitration – when those procedures are not necessary to ensure that the parties to the arbitration agreement are able to vindicate their claims.

Pet. for a Writ of Cert. at i, Concepcion, No. 09-893 (U.S. Jan 25, 2010).

3.   Scott v. Cingular Wireless, 161 P.3d 1000, 1008 (Wash. 2007).

4.   Homa v. Am. Express Co., 558 F.3d 225, 230 (3d Cir. 2009) (“the defense [New Jersey law] provides is a general contract defense, one that applies to all waivers of class-wide actions, not simply those that also compel arbitration.  Therefore, there are no grounds for FAA preemption.”); Kinkel v. Cingular Wireless, 857 N.E. 2d 250, 263 (Ill. 2006) (the “FAA neither expressly nor implied preempts a state court from holding that an arbitration clause or specific provision within an arbitration clause is unenforceable”).

5.   See, e.g., Discover Bank v. Super. Ct., 113 P.3d 1000 (Cal. 2005); Kinkel, 857 N.E.2d 250; Feeney v. Dell Inc., 908 N.E. 2d 753 (Mass 2009); Tillman v. Commercial Credit Loans, Inc., 655 S.E. 2d 362 (N.C. 2008); Muhammad v. County Bank, 912 A.2d 88 (N.J. 2006); Fiser v. Dell Computer Corp., 188 P.3d 1215 (N.M. 2008); Scott, 161 P.3d 1000; Herron v. Century BMW, 693 S.E. 2d 394 (S.C. 2010); Leonard v. Terminix Int’l Co., 854 So.2d 529 (Ala. 2002); West Virginia ex rel. Dunlap v. Berger, 567 S.E. 2d 265 (W. Va. 549 2002).

6.   See, e.g., Forrest v. Verizon Comm.’s, Inc., 805 A.2d 1007, 1013 (D.C. 2002) (upholding class action ban under D.C. law); Walther v. Sovereign Bank, 872 A.2d 735, 70 (Md. 2005) (same, with Maryland law); Stenzel v. Dell, Inc., 870 A.2d 133 (Me. 2005) (class action ban in arbitration clause not unconscionable under Texas law).

7.   See, e.g., S.D.S. Autos, Inc. v. Chrzanowski, 976 So.2d 600 (Fla. Dist. Ct. App. 2007); Vasquez-Lopez v. Beneficial Oregon, Inc., 152 P.3d 940 (Or. Ct. App. 2007); Thibodeau v. Comcast Corp., 912 A.2d 874 (Pa. Super. Ct. 2006); Coady v. Cross Country Bank, 729 N.W. 2d 732 (Wis. Ct. App. 2007); Eagle v. Fred Martin Motor, 809 N.E. 2d 1161 (Ohio Ct. App. 2004); Whitney v. Alltel Communics., Inc., 173 S.W. 3d 300 (Mo. Ct. App. 2005; Woods v. QC Fin. Servs, Inc., 280 S.W. 3d 90 (Mo. Ct. App. 2008).

8.   This has been true in cases where the federal courts have struck down class action bans.  See, e.g., Skirchak v. Dynamics Research Corp., 508 F.3d 49 (1st Cir. 2007) (class action ban in arbitration clause unconscionable under Massachusetts law); Fensterstock v. Edn. Fin. Partners, __ F.3d __, 2010 WL 2729759 (2d Cir. July 12, 2010); Chalk v. T-Mobile USA, Inc., 560 F.3d 1087 (9th Cir. 2009); Homa, 558 F.3d 225; Dale v. Comcast Corp., 498 F.3d 1216 (11th Cir. 2007).  This has also been true, however, for courts that have upheld bans on class actions embedded in arbitration clauses.  Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1377-79 (11th Cir. 2005) (upholding class action ban and other terms in arbitration clause under Georgia law); Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 174-75 (5th Cir. 2004) (upholding class action ban as consistent with Louisiana law); Snowden v. CheckPoint Check Cashing, 290 F.3d 631 (4th Cir. 2002) (same, with Maryland law); Pleasants v. Am. Express, 541 F.3d 853 (8th Cir. 2008) (same, with Missouri law).

9.   Of course, it has been widely observed that quite a few of U.S. Supreme Court decisions in this area are not readily traced to the language of the statute itself.  In one case, Sandra Day O’Connor wrote that “the Court has abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation.”  Allied-Bruce Terminix (Co.s, Inc. v. Dobson, 513 U.S. 265, 283 (1995) (O’Connor, J., concurring).  See also Rent-a-Center, West, Inc. v. Jackson, __ U.S. __, 2010 WL 2471058 at * 12 (U.S. June 21, 2010) (dissent of Justice Stevens) (in holding that arbitrator should decide challenge that an arbitration clause is unconscionable, the Court has extended a “fantastic” and likely erroneous decision).

10.  Volt Info. Sciences, Inc. v. Bd. Of Trustees of Standford Univ., 489 U.S. 468, 477-78 (1989).

11.  Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009).  (Thomas, J., concurring in the judgment.).

12.  See Discover Bank, 30 Cal. Rptr. 3d at 88-89 (“class action litigation for damages was for the most part unknown in federal jurisdictions at the time the FAA was enacted in 1925. . . .  The Congress that enacted the FAA therefore cannot be said to have contemplated the issues before us.”).

13.  E.g., Freightliner Corp. v. Myrick, 514 U.S. 280, 289-90 (1995) (“A finding of liability against petitioners would undermine no objectives or purposes with respect to ABS devices since none exist.”).

14.  Volt, 489 U.S. at 476 n. 5.

15.  See, e.g., Dix v. ICT Group, Inc., 161 P.3d 1016 (Wash. 2007); America Online, Inc. v. Pasieka, 870 So.2d 170 (Fla. Dist. Ct. App. 2004); America Online, Inc. v. Superior Court, 90 Cal. App. 4th 1 (2001).

16.  See Dunlap, 567 S.E. 2d at 280 (FAA does not allow a party to evade state contract law “merely because the prohibiting or limiting provisions are part of or tied to provisions in the contract relating to arbitration”); Scott, 161 P.3d at 1008 (contract terms “do not change their character merely because they are found within a clause labeled ‘Arbitration’.”).

17.  See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler Plymouth, Inc., 473 U.S. 614, 637 (1985) (arbitration clauses are enforceable “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum”); Equal Employment Opportunity Comm’n v. Waffle House, Inc., 534 U.S. 279, 295 n. 10 (2002); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991); Green Tree Financial Corp. v. Randolph, 531 U.S. 79, 81 (2000).

18.  See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (“The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.  A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.”); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 161 (1974) (“A critical fact . . . is that petitioner’s individual stake . . . is only $70.  No competent attorney would undertake this complex antitrust action to recover so inconsequential an amount.  Economic reality dictates that petitioner’s suit proceed as a class action or not at all.”); Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326, 338 n. 9 (1980) (to same effect).

KBR is Asking for It

Tuesday, February 9th, 2010

To paraphrase comedian Henny Youngman’s famous one-liner, take my KBR, please.

After all the bad press U.S. engineering and construction company KBR has received over the years for its operations in Iraq , both during its time as a Halliburton subsidiary and since, one might think it had learned a thing or two about how to avoid sticking its foot in its mouth.

But you would be wrong, As case in point consider the following legal brief KBR filed, which was posted online by the estimable Ms. Sparky — who is to chronicling KBR misdeeds, including those against it own employees, as white is to rice — in regard to the case of Jamie Leigh Jones,

For those who missed this news Ms. Jones is the then 20-year old former KBR/Halliburton worker, who says she was gang-raped by Halliburton/KBR coworkers in Baghdad in late July 2005.

The main points are by now well known. She says that just four days after arriving in Iraq she was raped by multiple men at a KBR camp in the Green Zone, the company put her under guard in a shipping container with a bed and warned her that if she left Iraq for medical treatment, she’d be out of a job.

In a lawsuit filed in federal court against Halliburton and its then-subsidiary KBR, Jones says she was held in the shipping container for at least 24 hours without food or water by KBR, which posted armed security guards outside her door, who would not let her leave.

According to her lawsuit, Jones was raped by “several attackers who first drugged her, then repeatedly raped and injured her, both physically and emotionally.” Jones said that an examination by Army doctors showed she had been raped “both vaginally and anally,” but that the rape kit disappeared after it was handed over to KBR security officers.

Ms. Jones had to be rescued from her American employer by U.S. State Department agents from the U.S. Embassy in Baghdad, after she was able to contact her father by cell phone, who then contacted his congressman, Rep. Ted Poe (R-TX), who contacted the State Department.

In late 2007, over two years after the reported rape occurred, the Justice Department had brought no criminal charges in the matter. In fact, an investigation by ABC News could not confirm any federal agency was investigating the case.

Early on, in a statement, KBR said it was “instructed to cease” its own investigation by U.S. government authorities “because they were assuming sole responsibility for the criminal investigations.”

Since no criminal charges were filed, the only other option was the civil system, which Jones tried. But KBR didn’t want this case to see the inside of a civil courtroom. Instead, KBR moved for Jones’ claim to be heard in private arbitration, instead of a public courtroom. It says her employment contract requires it.

When Jones went to work for KBR in Texas, and later for its subsidiary, Overseas Administrative Services, she signed contracts containing mandatory binding arbitration clauses, which required her to give up her right to sue the companies and any right to a jury trial. Instead, the contracts forced Jones to press her case through private arbitration, which she did in 2006.

At the time of the alleged attack, KBR was a subsidiary of Halliburton. So Jones was covered by the Halliburton dispute-resolution program, which was implemented when Dick Cheney was Halliburton’s CEO. On his watch, Halliburton, in late 1997, made it more difficult for its employees to sue the company for discrimination, sexual harassment, and other workplace-related issues.

One day, Halliburton sent all its employees a brochure explaining that the company was implementing a new dispute resolution system. The company sold the new program as an employee perk that would create an “open door” policy for bringing grievances to management and as a forum for resolving disputes without expensive and lengthy litigation. In practice, it meant that anyone who had a legitimate civil-rights or personal-injury claim signed away his or her constitutional right to a jury trial. Anyone who showed up for work after getting the brochure was considered to have agreed to give up his or her rights, regardless of whether the employees had actually read it. In 2001, the conservative and pro-business Texas Supreme Court overturned two lower courts to declare that this move was legal.

In arbitration, there is no public record or transcript of the proceedings, meaning that Jones’ claims would not be heard before a judge and jury. Rather, a private arbitrator hired by the corporation would decide Jones’ case.

When Ms. Jones testified before the House subcommittee on crime, terrorism, and homeland security in December 2007 the point was made that as KBR employees working on contract for the U.S. Army, Jones’ attackers were almost certainly covered under the Military Extraterritorial Jurisdiction Act, more simply known as MEJA, which subjects all civilians working abroad with U.S. armed forces to a defined legal code. But in Jones’ case, MEJA seems to have fallen short for a different reason: a lack of investigative muscle in the Green Zone. Both then and now the Department of Justice lacks investigators in Baghdad with responsibility for looking into crimes committed by private contractors against their own.

KBR has not shown much adroitness in its handling of Ms. Jones’s case. In a December 2007 e-mail with the subject line titled “Recent media coverage,” KBR President and Chairman Bill Utt said the company has disputed allegations by Jamie Leigh Jones.

“While the allegations raised by Ms. Jones are serious, after a review of the case KBR noted inaccuracies in the accounts of the incident in question, and disputes portions of Ms. Jones’ version of the facts,” Utt wrote in an e-mail obtained by the Houston Chronicle.

There is reason to think that Ms. Jones was not an isolated case. In her lawsuit, Jones asserted that “KBR and Halliburton created a ‘boys will be boys’ atmosphere at the company barracks which put her and other female employees at risk.” Another former KBR employee, Linda Lindsey, supported Jones’s claims about the “boys will be boys” environment of KBR barracks in Iraq. “I saw rampant sexual harassment and discrimination,” said Lindsey in a sworn affidavit for Jones’s case.

In a December 2007 letter to Secretary of Robert Defense Gates, Senator Bill Nelson (D-FL) mentioned “a second alleged assault, this time of a woman from Florida who reportedly worked for a KBR subsidiary in Ramadi, Iraq in 2005.”

Since the attacks, Jones has started a nonprofit foundation called the Jamie Leigh Foundation, which is dedicated to helping victims who were raped or sexually assaulted overseas while working for government contractors or other corporations. Since Ms. Jones came forward, other women have come forward with similar lawsuits against KBR

It was primarily because of Ms. Jones that the fiscal 2010 Defense appropriations measure includes a provision barring the Defense Department from entering into contracts with companies that restrict alleged sexual assault victims from taking legal action.

The amendment was introduced by Sen. Al Franken, D-MN. Support for the amendment was broad, but far from universal. The provision passed the Senate 68-30 in October, when the chamber was considering an initial version of the spending bill. Some Republican opponents argued that it was not Congress’ place to interfere in private sector contracts.

“Congress should not be involved in writing or rewriting private contracts,” said Sen. Jeff Sessions, R-AL, during floor debate on the provision. “Instead of eliminating arbitration we should look into how to utilize arbitration more in these kinds of disputes.” Sessions called the amendment a “political attack directed at Halliburton,” KBR’s former parent company.

The Obama administration and the Defense Department initially opposed the amendment, although the White House insisted it supported the provision’s intent. The Pentagon’s primary concern, according to a letter Defense officials sent to lawmakers before the Senate’s vote, was enforcement.

“The Department of Defense, the prime contractor, and higher tier subcontractors may not be in a position to know about such things,” the letter stated. “Enforcement would be problematic, especially in cases where privity of contract does not exist between parties within the supply chain that supports a contract.”

The letter stated that if the Senate deemed these types of contract clauses to be unacceptable, it might be more effective to prohibit them in any business transaction within the jurisdiction of the United States.

Negotiations between the department and Capitol Hill eventually resulted in a number of changes, including an agreement that the restriction would apply only to companies with government contracts valued at more than $1 million and that it would contain a waiver for national security concerns.

The provision, now law, does not require companies to change existing employment contracts, but will bar the government from entering into future pacts with those firms if they do not modify employment clauses. When the provision passed the Senate, Franken said it “narrowly targets the most egregious violations.”

With all this one might think that both KBR and Halliburton would have long ago seen given up trying to treat this as some sort of labor dispute, which should be handled by arbitration. Especially in light of recent court decisions.

Last September the United States District Court for the Southern District of Texas issued a decision in regard to an appeal from Halliburton regarding the case. According to the case summary:

PROCEDURAL POSTURE: Appellant employer sought review of a decision from the United States District Court for the Southern District of Texas, which partially refused to compel arbitration of some of appellee employee’s claims against the employer, which stemmed from the alleged gang rape of the employee by coworkers while working in Iraq.

OVERVIEW: The employee alleged that she informed the employer that conditions at the barracks were not safe and that she was gang raped in her bedroom after a social gathering outside the barracks. The claims for assault and battery, emotional distress, negligent hiring, retention, and supervision, and false imprisonment were found not arbitrable. At issue was whether these claims were related to the employee’s employment or constituted personal injury arising in the workplace, so as to render them arbitrable under the arbitration agreement. The employer argued that the claims were covered by the agreement because the alleged incident “related to” the employee’s employment. The court disagreed. Sexual assault was not within the course and scope of employment. This was true even though the employee received workers’ compensation benefits in connection with the incident, as the terms “course and scope of employment” were more narrowly defined under the agreement than in workers’ compensation laws such as the Defense Base Act. That the employee lived in employer-provided barracks was inconsequential because she was off duty at the time, and the barracks were located away from the work place.

OUTCOME: The court affirmed the district court’s decision and remanded the case to the district court for further proceedings.

Yet KBR is preparing to fight Ms. Jones over her right to settle her suit with the company, all the way to the Supreme Court. Its strategy? Destroying Jones’ credibility.

In its most recent 188-page brief KBR petitions for a writ of certiorari, which is a document a losing party files with the Supreme Court asking the Court to review the decision of a lower court.

To quote from the brief:

This interlocutory appeal from a partial refusal to compel arbitration concerns the arbitrability vel non of tort claims by an employee who, while working at an overseas location, was allegedly gang-raped by her co-workers in her bedroom in employer-provided housing. Halliburton Company/Kellogg Brown & Root, and various affiliates (Halliburton/KBR), contest the denial, in part, of their motion to compel arbitration of Jamie Leigh Jones’ claims concerning her alleged rape by Halliburton/KBR employees, while she was stationed at a company facility in Baghdad, Iraq. All of her claims were deemed arbitrable except for: (1) assault and battery; (2) intentional infliction of emotional distress arising out of the alleged assault; (3) negligent hiring, retention, and supervision of employees involved in the alleged assault; and (4) false imprisonment.

At issue is whether those four claims found non-arbitrable are, for purposes of Jones’ employment contract, “related to [her] employment” or constitute personal injury “arising in the workplace”. That contract incorporated Halliburton/KBR’s dispute resolution program (DRP), which required her to arbitrate all claims brought against the company falling within the scope of related-to or workplace language. In the alternative, should the alleged rape be deemed covered by the arbitration clause, at issue is whether the doctrine of unclean hands precludes granting equitable relief of specific enforcement of that clause.

Not being a lawyer myself I can’t comment on the jurisprudence of all this but I do find it amazing that KBR fights so hard to avoid doing the right thing; namely letting Ms. Jones have her day in court.

After all, on other issues, KBR can show signs of rationality. An example is the op-ed that appeared in this past Sunday’s Washington Post. The author, a former Air Force loadmaster, who was discharged for being gay, notes that within three weeks of his discharge, KBR hired him to go back to Iraq as a radio repair technician. (KBR knew that he was gay.)

So, for the time being, I can only suggest that KBR be subjected to the full barrage of ridicule it so richly deserves. After all, to cite a defense often heard in rape cases, it is asking for it.

*This post originally appeared in the Huffington Post on February 8, 2010. Reprinted with permission from the author.

**For more on binding arbitration visit the Workplace Fairness arbitration resources page and Fair Arbitration website.

About the Author: David Isenberg is the author of the book Shadow Force: Private Security Contractors in Iraq. He wrote the “Dogs of War” weekly column for UPI from 2008 to 2009. During 2009 he ran the Norwegian Initiative on Small Arms Transfers project at the International Peace Research Institute, Oslo. His affiliations include the Straus Military Reform Project, Cato Institute, and the Independent Institute. He is a US Navy veteran. His e-mail is sento@earthlink.net.

Meet the Senators Who Voted Against the Franken Amendment

Thursday, October 8th, 2009

I think that all homo sapiens can understand how the mere thought of an organization that receives government money through contract mechanisms being tangentially involved in setting up a fake tax shelter for a fake pimp and his fake prostitution ring of fake prostitutes can justifiably lead to lawmakers going absolutely cross-eyed with white-hot, impotent rage. But what happens when a similarly taxpayer-endowed contractor attempts to cover up employee-on-employee gang rape by locking up the victim in a shipping container without food and water and threatening her with reprisals if she report the incident? Somehow, it doesn’t engender the same level of anger!

Credit new Senator Al Franken however, for introducing an amendment to the Defense Appropriations bill that would punish contractors if they “restrict their employees from taking workplace sexual assault, battery and discrimination cases to court.” You’d think that this would be a no-brainer, actually, but that didn’t stop Jeff Sessions from labeling Franken’s effort a “political attack directed at Halliburton.” Franken, of course, pointed out that his amendment would apply broadly, to all contractors, because otherwise, ‘twould be a bill of attainder, right? Right?

Franken’s amendment ended up passing, 68-30. Here’s a list of the Senators who showed broad support for Roman Polanski by voting against it:

Alexander (R-TN)
Barrasso (R-WY)
Bond (R-MO)
Brownback (R-KS)
Bunning (R-KY)
Burr (R-NC)
Chambliss (R-GA)
Coburn (R-OK)
Cochran (R-MS)
Corker (R-TN)
Cornyn (R-TX)
Crapo (R-ID)
DeMint (R-SC)
Ensign (R-NV)
Enzi (R-WY)
Graham (R-SC)
Gregg (R-NH)
Inhofe (R-OK)
Isakson (R-GA)
Johanns (R-NE)
Kyl (R-AZ)
McCain (R-AZ)
McConnell (R-KY)
Risch (R-ID)
Roberts (R-KS)
Sessions (R-AL)
Shelby (R-AL)
Thune (R-SD)
Vitter (R-LA)
Wicker (R-MS)

ADDENDUM: It’s been pointed out to me that the U.S. Chamber of Commerce lobbied against the Franken amendment as well:

Republicans point out that the amendment was opposed by a host of business interests, including the U.S. Chamber of Commerce, and applies to a wide range of companies, including IBM and Boeing.

I guess we must cover up crimes like rape in order to save capitalism.

About the Author: Jason Linkins is a Political Reporter at the Huffington Post, covering media and politics. He’s based in Washington, DC. Previously, he wrote for HuffPo’s Eat The Press, and has also contributed to DCist and Wonkette.

This article originally appeared in The Huffington Post on September 7, 2009. Reprinted with permission from the author.

10 Steps to Ending Forced Arbitration

Wednesday, May 6th, 2009
If you look close enough at an employment or credit card contract you’ll typically see some fine print sized like this that says something to the effect of, “By signing this contract both parties agree to submit to binding arbitration. Both parties acknowledge that if there is one or more disputed items that remain unresolved at the end of arbitration, the arbitrator will render a final and binding decision on those unresolved items and his/her decision will be written on a separate settlement agreement and shall be signed by both parties.” It might be confusing. But you might sign it anyway because you need the job, or you need the credit card.

Did you notice the part about “binding arbitration”? That’s the part of the contract where you loose your rights to a trial by judge and jury if a dispute arises between you and that company.

What about the 7th Amendment, you ask? Aren’t we all entitled to a trial by jury? Well, unfortunately binding arbitration, also known as mandatory arbitration or forced arbitration, is legal. No courts or typical rule of law are involved in making decisions through mandatory arbitration. And if we don’t tell Congress to pass the Arbitration Fairness Act, it’s only going to get worse.

The Arbitration Fairness Act stands on the side of workers and consumers. It will make it illegal for companies to force binding arbitration. Instead, the Arbitration Fairness Act will make arbitration a voluntary option where both parties must agree to arbitration, rather than making it mandatory, binding, or forced.

  • Forced arbitration is the reason Jamie Jones of Houston, Texas cannot bring the men she accused of raping her on the job to trial.
  • Forced arbitration is the reason James Myers, also of Houston, Texas cannot bring the Halliburton-subsidiary he accused of demoting him due to age and race discrimination to trial.
  • Forced arbitration is the reason Irene Lieber of Brooklyn, New York cannot bring MBNA, the credit card company that forced her to pay $45,000 in stolen credit card fees, to trial.

For those who want to help make sure the Arbitration Fairness Act is passed, and stories like these never happen again, the Fair Arbitration Now Coalition has set up an easy-to-use website. The site not only calculates who your member of Congress is, but places the phone call, so you don’t even have to dial the number or worry if you’re calling the wrong office.

Here’s how it works:

1. You go to this website: http://bit.ly/arbitrationfairnessact which has been set up by the Fair Arbitration Now Coalition and sponsored by Workplace Fairness.
2. You enter your name, address, phone number, and zip code, then click “submit.”
3. Your two Senators and local Representative will be listed. Choose one of them and select “call now.”

(If it seems easy so far, you’re right. It is!)

4. Review the short script which starts, “Good day. I am a constituent and…”. This is a suggested script you can use when calling the representative’s office.
5. When you are ready to place your call, click “place call”, found at the top of the page.
6. A few moments later you’ll be pleasantly surprised to receive a phone call at the phone number you entered in step two. It will be a short recorded message from Paula Brantner, from Workplace Fairness and the Fair Arbitration Now Coalition, thanking you for your help and reminding you to mention that you are a constituent when you talk to your representative’s office.

(If you’re like me and you’ve never placed a call to a Congressional office you might be a little nervous at this point. But that’s ok. Just take a deep breath and remind yourself that this is democracy in action and making these calls is exactly how we do our part to get this bill passed.)

7. After Paula’s short message DON’T HANG UP. The Click-to-Call system will place a call for you directly to your selected Congressional office.
8. An office assistant will answer. Tell them you are a constituent and simply follow the script from step four.
9. Make note of the Congressional representative’s current position on the Arbitration Fairness Act, as well as the name of the person you spoke to and any additional comments, then click “submit your response.” The info will be submitted to the Fair Arbitration Now Coalition.
10. Be sure to go back and call your other two members of Congress.

You might be afraid of these 10 steps. But not to worry. You don’t need to know how to contact your Senator or Representative before making the call. You just need to visit http://bit.ly/arbitrationfairnessact and be willing to help put an end to forced arbitration with the Arbitration Fairness Act.

Fine print: by reading this blog entry you retain all your rights.

About the author: Brett Brownell is a New Media Fellow with the New Organizing Institute and Workplace Fairness, and was a blogger and videographer for the Obama campaign’s new media team.

Your Rights Job Survival The Issues Features Resources About This Blog