Three cases come before the Supreme Court this month on the question of whether you must sign away your right to sue your employer in order to get a job. Forced arbitration has been the law since 1925, but some people are exempt from it. Should you be too?
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36 replies on “To Sue or Not to Sue: Supreme Court Mulls If You Must Surrender Your Rights Just to Get a Job”
I”m a little late to this comment party, but as I listened to this episode, I thought back to the line in the Declaration of Independence about inalienable rights. As that has been describe to me that would mean rights given to you by God that cannot be taken away nor given away. Does the right to work somewhere fall under that? I think not. Does the right to sue fall under that? Maybe. But I lean more in the direction that Bill espoused initially about the need for contracts.
Yeah, Bill, I think you finally won me over by describing how you were won over. I liked the “don’t hurt people, don’t take their stuff, and do what you promised to do”… and here’s how it really becomes clear. “Don’t hurt people” includes “don’t kill people”, and one way to kill people is to, say, shoot them.
So let’s just replace “waive your right to be sued” with “waive your right not to be shot”. Now how does it sound?
While it is true that you probably shouldn’t sign such a contract, such a contract is probably unconstitutional in the first place. If a contract includes waiving a constitutionally protected right – yeah, no. QED
I think laws like this get passed in such an unequal manner is lobbying by the industries who can sweet talk lawmakers into gerrymandering the law around them.
Sorry Scott…You are trying to replace FACTS with supposition… People who sue may be in the minority but it only takes 1 lawsuit to bankrupt a company (win or lose). Your statements the Arbitration would “probably” be cheaper, It would “seem like”, and “I think” all ignore FACTUAL data. You are stating the world as you wish it to be instead of as it actually is IMHO.
Since the law said “seaman” and not “captain of ship or engineer of train” that should include her as baggage handler, not exclude her. The law didn’t just say “people steering the boat or operating the train.”
I mostly side with Bill’s idea of “you shouldn’t take the job if you don’t like the terms” but if the whole industry is colluding against all of their potential employees then I think there is a place for government to come in and say “um, no… you cannot do that.”
When I was first handed an Arbitration Agreement as part of my onboarding paperwork, it was explained to me that this leveled the playing field between the company and myself in case of a dispute. I wasn’t up against a company with wads of cash at their disposal, but rather had equal footing under the arbitration system. Theoretically I wouldn’t be at the mercy of high-priced lawyers hired by the company, vs. some type of substandard legal team I could not afford. All well and good as far as it goes. Since then, I’ve become a part of the HR team and have been on the other side of the equation, selling the story of how arbitration helps us all be equals. I see it now as merely a stop gap measure. If the grievance is had enough or the company is infested with wokeness, employees will still be able to sue because arbitration doesn’t forestall the right to address anything covered under the alphabet soup cadre of ‘protective class’ legislation such as ADA, ADAEAA, etc. People still sue, companies still try to strong arm them from doing it. Discrimination lawsuits are a plaintiff lawyer’s dream these days.
Assosceles?
Well, I have it on good authority from a math teacher I know that similar triangles have no ASS. There are those with commonalities of
but no
Whittle Debunked!
We have civil courts to ensure that people don’t need to take justice into their own hands. So… what do you do when you don’t have access to the courts?
Posse?
Mob?
Hitman?
[spoiler title=”wait for it …”] BLM!!! [/spoiler]
Isn’t BLM (the organization, not the sentiment) all the other three?
Yes! Hence, the intentionally-manufactured suspense via HTML and CSS trickery.
America’s legal system is a lottery controlled by the gamblers. The whole “winner pays” system where money is extorted/grifted by the filers who know no corporation/individual wants to go to court is halfway to dooming the republic already. Employers are stuck. They are compelled to write this type of employment agreement because the system is f*#ked.
I’m a healthcare professional. The horrors of the legal lotto system is profligate throughout my industry. It cannot be argued that many cases are very worthy of lawsuits. But costs are 3-4 times higher because of our “cover our asses” testing. Pharmaceutical companies spend billions testing new drugs (where it should only cost tens of millions) and are expected to give us free meds and settle lawsuits for enough money to cover a Caribbean country’s budget.
My wife showed me a statistic a while back about the hundreds of Fortune 500 companies that went bankrupt in asbestos lawsuits. Very few knew about the carcinogenic issues of this natural insulator. (You can be exposed to if from your environment, too.)
People can make a good living falling at WallMart, even if caught on tape faking it!
If we adopted Britain’s system, as troublesome as it may be, it would be better. Scott minimizes the cancer that our legal system has become. I love ya, man, but open your eyes!
That’s a legitimate view from one side of the argument. Thank you for expressing it.
Why should you give up your “right to sue” to get a job? As an initial matter, I cannot find a “right to sue” in the Constitution. The first amendment reference to “redressing grievances” relates to “petitioning government” and has nothing to do with private employers. You do not have a “right” to any particular job and employers should be able to set the conditions to and of employment.
More importantly, the constitution should be understood to protect the right to contract. This is not about equal protection because no one is being denied any right based on any immutable characteristic such as color or sex (although the radical left apparently believes that sex is not immutable). The government should not interfere with the ability of free (and competent) people to enter into whatever contracts they see fit, including the obligation to arbitrate employment disputes.
The Federal Arbitration Act (“FAA”) actually serves that purpose insofar as it recognizes that people are free to agree to arbitrate their differences and forego courts as a first resort. The FAA is merely the mechanism by which the decisions of arbitrators are enforced. If an arbitrator says that Party A owes Party B $1,000, the arbitrator has no power to compel Party A to pay Party B that money. But Party B can take that arbitration award to court and get the government to compel Party A to pay by forcible means.
Bill suggested a compromise, where parties first arbitrate their disputes and then go to court if they are unsatisfied. That already exists in the FAA to a limited degree. If a party believes that the arbitration award was the result of fraud or malfeasance of the arbitrators, or that the arbitrators acted beyond the scope of the authority granted to them in the arbitration agreement, an aggrieved party can seek to have the arbitration award vacated or modified by a court (although the threshold for obtaining such relief is significant as courts tend not to want to interfere with the results of arbitrations except in the most egregious circumstances).
Scott is simply wrong when he says that people are forced to enter into agreements to arbitrate. If you don’t want to accept arbitration as a condition to employment, you should seek other employment. In fact, if enough valued employees believed that arbitration was sufficiently disadvantageous, they could act collectively to demand their employer not insist upon it. Unions could serve that purpose, but unions are not necessary to achieve that end if the employees can organize without them.
The FAA was enacted because arbitration potentially serves multiple purposes. It is often faster, less costly and more efficient than litigation in the court system. The existence of arbitration reduces the need for judges. As a libertarian, while I view the legal system as one of the few areas where government is necessary, my preference is always to keep government as small as possible. Arbitration serves that purpose in the civil arena.
Scott ends on an aspirational note – employers that are trying to create a family-like atmosphere at work would do well to eliminate arbitration. That might be a useful sentiment for very small businesses that employ a handful of people without significant turnover. But for a business of any greater size, a business is not like a family. Family is family.
I appreciate your detailed response, Kevin, although we acknowledged in the episode that you are ‘free’ to not get a job. Sadly, the provision has become boilerplate, and such principles might make you nigh on unemployable. Of course, my preferred solution would be self-employment.
The problem with lawsuits is frivolous lawsuits. This is a dilemma we’ve run into with our legal system like the problem with Freedom of the Press.
With Freedom of the Press we have a legal foundational principle that allows the press to act as watchdogs on the government but … What happens when the Press colludes with the government? Who says what is OK to publish and what’s not? If we give government the power to dictate what is and is not OK to print we end up in an even worse place than if the press is actively but voluntarily colluding with the government.
So the solution to the Freedom of the Press dilemma is lawsuits. If the press publishes something that is patently not true and it does harm in any way to anyone then the Press should be liable for the damage they cause. Truth always being an ironclad defense in court this would tend to keep the Press honest or at least very careful about how they spin the truth. With the truth still being the driving factor.
The same problem exists in determining what is and is not a frivolous lawsuit. If we give government the power to determine what is and is not a legitimate suit then the government will make any legal challenge it doesn’t like to be “frivolous” just to curb any redress of grievances.
These are examples of the weakness inherent in our Constitutional system. This is why John Adams said “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
The Founders were no fools. They knew such people exist and gambled that the nation would remain a moral and religious society. There was no way to ensure individual liberty and still implement safeguards against such villains.
The Constitution only works properly and adequately when dealing with right thinking people of good will in good faith. It is susceptible to attack by immoral people acting in bad faith for their own personal gain.
When you see someone exploiting this weakness in our system, you can be certain no matter how much virtue signalling they do, they are not moral people acting in good faith.
What can you do about this? Well, you can support things like suing the Press for real damages and you should always point out that those who abuse our system are doing so because they are in fact villains. Pop that damned false virtue bubble every chance you get.
This episode is a great example of why I like these guys so much. Bill, in essence, changed his stance when Scott explained the constitutional right for a redress of grievances. What a fabulous display of true integrity and character. Well done, Bill! And to all you guys, keep up the great work!
Thanks, David. My point in the Backstage episode was awkwardly stated, as I didn’t mean to suggest that your ‘right to sue’ is encompassed under the Constitutional right to petition one’s government for ‘redress of grievances.’ It was a natural law argument, that I retain the right to pursue a legal remedy and none should be able to strip me of it. As nothing we do here is scripted, I often wish for a Mulligan.
Nearly every Long Term Supply agreement that I have been involved with over the past 35 years includes language about dispute resolution being handled in arbitration. These are agreements between companies entered into both freely and with mutual negotiation.
An employment agreement (not necessarily a contract) is a one-way document. It is sign this or you can’t work here. Most people have no idea what they are signing away.
I always thought this was Dickens. (Oliver Twist?) The ass in question was a donkey (English usage in Dickens’ time)
Yes, Mr Bumble in Oliver Twist. “If the law supposes that, the law us an ass- an idiot”
Thanks, couldn’t recall the character name.
Exactly, that’s the comment I was going to make.
You’re both wrong, it was Assasstotle that said “The Law is an Ass”. But he only said it because he was self promoting his own name trying to pull some business from that upstart twit Aristotle. Ari was getting all the attention and Ass was just getting kicked around.
Hmmm – modern usage should be The Law is an AOC. Fits both the current usage of the term ASS and the Dickensian usage of Donkey.
I still prefer teh term that Kurt Schlichter coined for AOC – “Gulag Barbie”
Wouldn’t you love to see Project Veritas do some hidden cam work on her staff to see what they really think about her.
I like it! Even better, have Veritas catch what the party leadership (in the DNC, media, financers) think of Gulag Barbie
Well, it’s obvious to me that all of you guys just want to date her.
I ASSiduously follow the rule – Don’t stick your D*#K in crazy.
That one more than qualifies as crazy. She really should live in Florida.
A wise rule.
“crazy” is too nice – the clinical term is bunny boiler.
I think she’s more of “dumber than a bag of hammers” than crazy, but that’s just me
It can be both – she has those crazy eyes.
As Steve likes to say, Embrace the healing power of “and”
You are making an”ASSumption”. Be careful there. You may make an ass out of both you and me. (Well, one or both of us may already be an ass, but one can’t assume. Arrghh! I did it again.)