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Eldritch
April 30, 2009 8:49 PM
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That's awful!

What the fuck is wrong with this country.

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nerdtalker
April 30, 2009 9:37 PM
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@Eldritch: How the hell is binding arbitration even legal?

It doesn't make sense. At all. It's a part of so many contracts, it is simply impossible to *not* get forced into it.

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floraposte
April 30, 2009 11:12 PM
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@nerdtalker: I would like a lawyer (perhaps one who wanders around here eating for two?) to briefly explain why arbitration seems to trump even the toughest federal laws. As a state employee, I'm severely limited in my legal recourse against my employer, because it's the state, but even I can sue for discrimination and ADA violations. How can this right be abrogated by such a coercive, power-imbalanced setup?

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Eyebrows McGee (now with more baby!)
May 1, 2009 3:11 AM
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@floraposte: To be honest, I have no idea. Given that courts WILL throw the clause out in appalling situations, I'm frequently shocked by the mandatory binding arbitration clauses that courts *refuse* to throw out.

It's not an area I have a lot of experience with, so there's probably another lawyer wandering around with a better answer. But I do know a couple of retired lawyers who looked into doing arbitration in retirement ... and couldn't get hired by the major arbitration companies because they had an honesty problem. As in, they were too honest. I've also known arbitrators who were dropped for finding in favor of the consumer too many times. (Like once.)

Arbitration CAN work really well -- my state has recently instituted mandatory arbitration in all divorce cases; you only get to go to the judge if you can't come to an agreement in arbitration, and it's working extremely well -- but it's just ridiculously broken as it's currently used between companies and individuals.

Maybe they could require individuals to go through arbitration FIRST (at the company's expense) and if an agreeable settlement can't be reached, THEN they can go to court (at each party's expense). That'd give the companies a strong incentive to reach a fair settlement in arbitration, because they can get all the cost- and time- and publicity-savings of arbitration ... but only if it's fair. If it's unfair, they're going to be paying for the arbitration and paying again for the court case.

(And, yes, some buttheads would refuse reasonable settlements, but you could have a law that if they're unreasonable in arbitration they have to pay a portion of the costs or something. I don't know, just noodling off the top of my head here.)

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mizike
May 1, 2009 1:51 PM
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@Eyebrows McGee (on Twitter: LPetelle): RE: the divorce cases; is it possible you're saying arbitration when you mean mediation? I'm not trying to step on your toes here, you're a lawyer and I'm not, but I've never heard of mandatory binding arbitration used in the family context but I do know that mandatory mediation for family matters is quite common (and is becoming increasingly legislated as mediation saves the parties tons of $$$, is much quicker than litigation, and is generally appropriate in family matters). There are schemes where the parties enter into mediation and if they can't resolve their issues the mediator takes on the role of an arbitrator and rules on whatever issues are still unresolved, but I've only heard of it being used when agreed upon by the parties, as opposed to court appointed. Also from the way you're describing it, it definitely sounds like mediation -- arbitration isn't collaborative, there is no agreement sought.

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Eyebrows McGee (now with more baby!)
May 1, 2009 4:18 PM
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@mizike: \"mandatory binding arbitration\" -- it's specifically NOT binding. :) Where I am, the words w/r/t divorce arbitration/mediation are used interchangably. It's all done under the auspices of the court using specific rules unique to the divorce setting, so it doesn't matter a whole lot what you call it.

Some jurisdictions may make a distinction between arbitration and mediation, but mine does not. (Some jurisdictions even elsewhere in my state may, I don't know. Locally, we don't.)

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wastedlife
May 1, 2009 3:12 PM
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@Citizen Kang: I'm pretty left leaning, but I would not put the blame on \"free market\" and \"free market\" supporters. This is a legal issue with regards to contract law. If one of our constitutional rights in this country is a right to a fair trial, how is it legal to sign that right away? It is illegal to sign yourself into slavery, so why not this?

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dragonfire81
May 1, 2009 4:53 AM
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@Eyebrows McGee (on Twitter: LPetelle): MBA is another fine example of something that works well in theory, but is too plagued by conflicting interests to be of much use.

All these horror stories have me pondering if anyone has actually SUCCEEDED in arbitration.

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bohemian
April 30, 2009 11:58 PM
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@floraposte: That is what I am wondering. How can someone avoid federal ADA and labor laws by throwing an arbitration clause in. What other laws can they ignore this way?

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Citizen Kang
April 30, 2009 8:57 PM
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@Eldritch:

The idiots who constantly yell \"free markets\" whenever even the slightest regulation is suggested. I don't know exactly where Rand-ian Libertarians think their objectivist ideals leave the little guy, but time and again we've been shown that the market does not regulate itself fairly nor does it govern with an enlightened sense that high tides raise all ships. The gap between the poor and the obscenely wealthy has grown year after year with the middle class sinking further and further down the ladder. I'm not a fan of government regulation, but the simple fact is that if there were none, business interests would run roughshod over us even more than it has to date.

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Ein2015
May 1, 2009 2:55 AM
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@Citizen Kang: @bohemian: WRONG AND WRONG!

Rand says NOTHING about mandatory binding arbitration. Based on the cases presented here on Consumerist, she'd say that it is a BAD justice system and thus should be scrapped.

Go read up on things before you insult me and other intelligent people.

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Skaperen
May 1, 2009 12:15 AM
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@Citizen Kang: \"Free Markets!\" \"Free Markets!\" \"Free to screw the people in the Markets!\".

Self regulation is s joke when only the big corporations are doing the regulating.

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Applekid
April 30, 2009 9:29 PM
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@Citizen Kang: People may disagree about the amount of control over business government has, but government protecting individual rights is the point of having government. \"Free market\" talk doesn't have anything to do with giving the market the right to ruin people's lives.

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bohemian
April 30, 2009 11:56 PM
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@Applekid: There are plenty of the Rand-ian fanboys who absolutely see being able to screw over individuals part of the free market mentality. Your interfering with their capitalist ventures if you force them to treat people like they have any sort of worth. They see something as simple as labor laws and human rights to be infringing on the ability to do business.
Sadly there are plenty of businesses that think this is a grand idea too.
I have seen so many instances exactly like the person in the story. Someone has a legit medical issue, employer makes things worse rather than better, then goes after the employee to make their life hell and fire them for something unrelated and unfounded to CYA.

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Citizen Kang
April 30, 2009 11:14 PM
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@Applekid:

That is true, but considering that legislation is being proposed (at least as it pertains to nursing homes) to limit binding arbitration, you know someone is going to be screaming about \"free markets\" and government intrusion.

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Red_Flag
April 30, 2009 8:53 PM
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My condolences on your being shafted by the system.

Arbitration (or actually, \"mediation\") could be a useful first step in conflict resolution, but it should not, ever, strip away a citizen's right to redress in a courtroom.

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Mary Marsala with Fries
May 2, 2009 9:55 AM
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@Red_Flag: Arbitration is not the same as mediation -- it's not a type of conflict resolution at all, but rather a \"mock court\" where a non-judge hands down legally-binding decisions. In mediation, the parties work together with the help of a third party to come to an agreement -- and if they don't, then nothing is solved and the case typically moves on to trial. Mediation is an attempt to settle things peacefully so that things don't have to continue to trial. Arbitration doesn't attempt to get the parties to reach an agreement; it just takes away one party's power to sue in court, and puts them at the mercy of a hired pseudo-judge.

Big difference!

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Parapraxis
April 30, 2009 10:54 PM
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@Red_Flag:

I'm glad that this post raised one of you...

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floraposte
April 30, 2009 11:12 PM
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@Parapraxis: Heh. Took me a minute, but I liked it.

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Hello_Secaucus
April 30, 2009 8:53 PM
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Would the state and federal anti-discrimination laws trump the contract?

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George Gardei
April 30, 2009 8:54 PM
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I am wondering if anyone ever thought of suing the arbitration company for conflict of intrest?

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humphrmi
May 1, 2009 1:43 AM
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@George Gardei: I posted the same question in the last story about arbitration. I think that the arbitration companies should be held accountable for these atrocities. Of course, until the government reins them in.

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Optimistic Prime
May 1, 2009 10:28 AM
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@humphrmi: I'm not sure why they can't be sued for criminal activities. I would think this would fall under some sort of collusion to commit fraud. I'm not a lawyer, but I can see wrongdoing when it's in front of me.

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paradisefound24
April 30, 2009 8:54 PM
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This post actually motivated me to click on those two links consumerist's always putting up. This is wildly illegally, even under the most broadly interpretation.

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henwy
April 30, 2009 8:54 PM
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I don't get it. Doesn't the American's with disabilities act only apply if the disability doesn't fundamentally affect the ability of the person to do the job? So why would he put on the leg anyway if crutches didn't influence how well he did the job? My instinct here is that that is where this case will end up hinging. If he really can do the job as well on crutches as on the prosthetic, then the company would be at fault. If he couldn't do the job, then the ADA wouldn't qualify, right?

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blash
April 30, 2009 9:36 PM
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@henwy: You'd be surprised. As a person with hearing loss, I am not allowed to be discriminated against getting a job as a (just an example - I'm not one) telemarketer, because the employer would be required to buy me a phone that will work with my hearing aids. The only times the ADA doesn't apply is when it's quite literally impossible, i.e. you can't hire the blind to be a chauffeur nor would the ADA be applicable in the case of a cripple applying to be a building inspector who has to walk stairs all day long, since such a person would be irrevocably limited in his efficiency. ADA simply requires employers to make adjustments that are practical and affordable for them to do.

In this case... that's pretty fucked up. Another reason why the American legal system needs revamping in a world where contracts are all-powerful over common sense and decency and people continually turn into greedy, inconsiderate bastard vampires.

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floraposte
April 30, 2009 11:14 PM
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@blash: For what it's worth, while I totally agree he should be entitled to redress in court, the results there are pretty dire, with over 90% of cases being decided in favor of the employer.

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Etoiles
April 30, 2009 8:55 PM
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Wow.

Usually I'm not in favor of the \"sue the hell out of them\" mindset, but... he should have been able to sue them for every penny they were worth. What despicable behavior on the part of his (former) employers.

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Red_Flag
April 30, 2009 8:57 PM
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@Etoiles: He can't sue. Because he is locked into binding arbitration in his contract. Therein lies the problem.

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katstermonster
April 30, 2009 11:54 PM
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@Red_Flag: Thus, why the commenter said, \"He should have been able to sue...\" As in, he wasn't.

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nakedscience
April 30, 2009 8:57 PM
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@henwy He said that he COULD do the job without the leg, but his new supervisor kept demanding he wear it, and he complied to make it easier on himself. I imagine he wore a leg sometimes instead of crutches because ... well, he has that right.

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henwy
April 30, 2009 9:03 PM
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@nakedscience:

Right, so the whole thing would end up hinging on whether or not he could do his job with the crutches. My guess is the company will claim he couldn't, which is why they asked him to put on the leg so he could actually do the job properly. If that ends up being the truth of the case, then the ADA doesn't apply. It'll probably end up being a lotta competing testimony about what the job entails and whether it's possible to do it with arms in crutches or not.

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floraposte
April 30, 2009 11:16 PM
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@henwy: But they don't get to dictate \"accommodation\" to him. Even if they argued he couldn't do his job on the crutches, that may translate into an obligation to find a way for him to, you know, sit down.

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bohemian
May 1, 2009 12:04 AM
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@floraposte: I get the impression that the employers problem with the crutches is one of \"image\" not ability to do the job. That right there should be criminal x1000.

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Corporate_guy
April 30, 2009 9:25 PM
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@henwy: He doesn't say how long he worked at USC, but he says he was doing the job there just fine with crutches or the fake leg. So if that is what the case hinges on, he wins automatically. And of course the management at the new facility also gave him good reviews until he filed the grievance. Again a pretty solid case that he was able to do the job fine. And pretty solid proof that he was only evaluated bad because of the grievance. The obviousness of this case makes it almost criminal for a judge not to throw out the arbitration agreement.

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Esquire99
April 30, 2009 8:58 PM
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Another compelling story, but that doesn't necessarily make arbitration evil. Who's to say that the arbitrator was biased and that his case was actually good. He could have just as easily lost in court. These anecdotes don't offer any evidence, other than \"I lost\", as proof that the arbitration was unfair. I will concede that given the way the system is currently configured, arbitrators have an inherent conflict of interest, but just because this guy (and the other featured victims) lost doesn't mean it was unfair.

That said, I think I could support the statutory elimination of arbitration from employment contracts. I think they are wholly different from consumer or real estate sales contracts, and our government does have a tradition of protecting employees, particularly from discriminatory practices. Further, I think employment disputes present a more important issue than disputes over a sale, making them more worthy of government protection.

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Ichiro51
April 30, 2009 9:25 PM
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@Esquire99: \"I will concede that given the way the system is currently configured, arbitrators have an inherent conflict of interest, but just because this guy (and the other featured victims) lost doesn't mean it was unfair.\"

In a court of law, if there exists a conflict of interest between a judge and a party, that judge is precluded from presiding over the matter. It doesn't even reach the point where it has to be ex post decided whether it was \"unfair\" - the judge is simply out.

Now if you're conceding that arbitrators in this context are inherently conflicted, why do you think they should be able to preside over a given case, as opposed to a judge not being able to preside over the same case in a court of law?

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Esquire99
April 30, 2009 10:09 PM
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@Ichiro51:
My argument is only that arbitration, in theory, is not evil and unbiased. The current manner in which it is administered does result in inherent conflict of interest and potential bias. I take issue with the argument that potential bias = real bias. The fact a conflict of interest exists doesn't mean the person acted on it. That said, that person shouldn't even be put in that position. I think the appropriate thing for congress to do is fix the arbitration system, not eliminate it.

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Ichiro51
April 30, 2009 11:17 PM
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@Esquire99: I'll agree with the proposition that arbitration itself as a genus is not evil and is unbiased. Do I think arbitration has its place - say, between sub-contractors on a construction project? Sure.

However, we're dealing with the species that is not only mandatory and binding, but forced upon consumers and employees by entities that have an abundance of resources (resources that help procure the \"right\" arb shop). I realize you'll probably take issue with my use of \"forced,\" but let's be honest - if a contract was being drawn up from scratch between the little guy and the big bad business, I highly doubt that MBA would be a term that both would quickly agree upon.

Anyway, this form of arbitration is the only one with which I take issue, not the general idea of arbitration.

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Inglix_the_Mad
May 1, 2009 2:19 AM
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@Ichiro51: Or to put it another way, when I negotiate a contract, do you honestly think I can get some company to let ME pick the arbitrator?

They wouldn't let that happen even if H*ll froze over.

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mythago
May 1, 2009 11:46 AM
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@Inglix_the_Mad: Or, to put it yet another way, if arbitration really was better for the consumer, do you think corporations would require it?

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mythago
April 30, 2009 9:54 PM
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@Ichiro51: Because some free-market types think lawsuits are all evil and arbitration is some kind of A=A fair resolution of disputes. Or something, I can't say I follow the logic.

In courts, the parties may also challenge the judge if they believe the judge to be unfair. Where I practice, each side has ONE opportunity to strike a judge they are assigned to (before you appear in front of them - no waiting until you get a bad result and then complaining). This makes it very easy to avoid truly biased judges.

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Esquire99
April 30, 2009 10:07 PM
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@mythago:
I don't think lawsuits are evil at all. I do think they are expensive, time consuming and are frequently abused by people raising frivolous claims. I think, in theory, arbitration is a more efficient way to handle disputes over consumer contracts that are simple enough to not need the full power, and expense, of litigation.

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mythago
May 1, 2009 11:45 AM
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@Esquire99: Oh, well, if we're talking \"in theory\", rather than in a non-idealized reality, a neutral, public court system wins hands-down.

It's simply not true that people \"frequently\" file frivolous lawsuits, outside of the \"theory\" of Chamber of Commerce horror stories. It is true, of course that people also abuse the court system by raising frivolous defenses, but we don't hear about that so often. Huh.

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Red_Flag
April 30, 2009 9:04 PM
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@Esquire99: A courtroom judge is paid by the gov't/taxpayers. An arbitrator is paid by one side of the argument he is arbitrating. I'd go with the judge being more impartial than the arbitrator any day of the week.

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H1N1_GitEmSteveDave
April 30, 2009 9:00 PM
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I had something similar when my boss made me put my false teeth in after I had front ones knocked out in a pool accident. My first set was a \"basic\" partial, and I could not eat with it, had the metal tabs break off, it hurt, etc...

But doesn't this fall under federal ADA law in addition to FMLA? Can a contract override federal law?

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Corporate_guy
April 30, 2009 9:29 PM
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@Wants A CU Labcoat_GitEmSteveDave: No, because not having teeth isn't a disability.

What kind of job was it that the guy made you put the teeth in? If it's customer facing? And why would it matter if you had them in while eating? Why not take it out?

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H1N1_GitEmSteveDave
May 1, 2009 12:26 AM
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@Corporate_guy: @katstermonster: Sorry, I was referring to John, the OP's tale, not mine.

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katstermonster
May 1, 2009 2:04 AM
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@H1N1_GitEmSteveDave: haha, I gotcha. And here, I was just starting to have fun. :)

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katstermonster
May 1, 2009 12:11 AM
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@Corporate_guy: Actually, this is a weird one, because had he not said that having the teeth in made him unable to eat, he might have fit the ADA's definitely of disability, which says is defined as physical or mental impairment that \"significantly or severely restricts\" one from performing major life activities. Major life activities include the following: \"caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working\"

So technically, NOT having teeth doesn't prevent him from eating. However, his employer is forcing him to wear a corrective device that prevents him from engaging in a major life activity. So...he could win, with the right court. Oddly enough, this parallels this article, in that the corrective device is what is causing the issue. Anyway, just my two cents.

On a similar note, I'm genetically missing a tooth near the front (to the right of my two front teeth). I wouldn't call is a disability, but it sure is annoying. Getting a missing tooth replaced is a way bigger pain than I ever could have expected. Although I'm also missing my wisdom teeth (as in, never had any, not even one), so I don't complain TOO hard. :-D

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Aristeia
April 30, 2009 9:02 PM
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Hey, this sounds like a perfect case for the EEOC to get involved. According to this case, a mandatory binding arbitration clause is not a bar for the EEOC to seek relief on the victim's behalf.

This article describes some of the details involved. The facts are different enough that this might be a real battle, but I can't imagine any judge not interpreting SCOTUS' holding to apply in this case. Ignore some of the biased tone of this article. Also, I love that bloody Justice Thomas woke up long enough to write (or have one of his clerks write) a dissent. Jerk.

I really hope John gets a fair hearing. Mandatory binding arbitration is a sick, twisted way for companies to get away with any amount of negligence or abuse it wants. And I can't stand it.

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Jason Fisher
April 30, 2009 9:08 PM
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I was on the other side of an arbitration case a few years ago. I was in management, customer slipped and fell. I put in the report it was pretty much our stores fault. Hot day, had some clerks moving ice on a dolly, some fell, melted, customer slipped and broke her leg. Seems pretty open and shut. The companies attorney got the case to binding arbitration. Sounded pretty bad for our company, I expected us to pay her $34,000 claim as I told the truth. In the parking lot, I told the attorney sorry but I couldn't lie. He said it was just a formality. The presiding ex-judge and him play racketball 2x a week and both have daughters in ballet.
I just remember going home in shock that such a conflict of interest were legal.

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katstermonster
May 1, 2009 12:14 AM
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@Jason Fisher: Oh. My. Kudos to you for being honest. That's pretty ridiculous, though.

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Esquire99
April 30, 2009 9:11 PM
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@Aristeia
Excellent case. I think you're probably right that he could file with the EEOC and hope they choose to pursue his case. The holding seems more than broad enough to make clear that a binding arbitration agreement doesn't preclude the EEOC from getting involved.

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Coelacanth
April 30, 2009 9:11 PM
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It seems that Mandantory Binding Arbitration abridges due process. That should be illegal.


Could mediation be a quick way to initially mediate disputes in a low-cost environment? Possibly, in theory - but it should *never* stand as the last method of redress.

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Corporate_guy
April 30, 2009 9:36 PM
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@Coelacanth: It seems like the only problem is the mandatory part. You remove that and the arbitrator would be much more inclined to give out settlements closer to what a court would give or at least settlements that cover the quantifiable damages like lost pay or any bills that need to be paid.

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PlanetExpressdelivery
April 30, 2009 10:17 PM
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@Corporate_guy: You also have to randomize the arbitrator, and any bias on either side should be filed in a detailed report along with the results of arbitration in the event that the result is appealed by a civil court/court of law and reviewed.

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mythago
May 1, 2009 11:46 AM
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@PlanetExpressdelivery: But you don't appeal in a civil court. The whole point of arbitration is to take the case OUT of the courts.

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varro
May 1, 2009 5:57 AM
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@PlanetExpressdelivery: That's how lower-value cases in Multnomah County (Portland), Oregon are handled.

If you sue for less than $50,000, the case goes to arbitration, and the court gives the parties a list of arbitrators to choose from. If the parties cannot agree, the court selects one from the list.

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Esquire99
April 30, 2009 10:10 PM
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@Corporate_guy:
I've got to agree with mythago here. I'm not sure I see how making it non-mandatory would fix the problem. The bias comes from the way arbitrators are selected and paid, not the fact that it's mandatory.

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nakedscience
April 30, 2009 9:13 PM
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@henwy They will CLAIM he couldn't, but seeing as he had done the job without his leg and with his crutches numerous times before, their claim is wrong. My guess is that the supervisor was just a jerkwad and not willing to listen to reason.

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Geekybiker
April 30, 2009 9:14 PM
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What is really sad is this was a hospital. You would figure they would know more than just about anywhere else about disability rights and law.

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Rectilinear Propagation
May 1, 2009 12:59 PM
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@Geekybiker: My Thoughts Exactly

Frankly, you'd think they wouldn't have thrown such a shitfit over someone being on crutches in the first place. It makes you wonder how they treat patients there and why these people are working in a hospital if they have such a big problem with disabled people.

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ARP
April 30, 2009 9:21 PM
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Remember the case of the woman contractor in Iraq who was raped and locked in a shipping container. When she tried to press charges...yep, aribitration clause.


[consumerist.com]

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RecordStoreToughGuy_starcommandseries.com
April 30, 2009 9:21 PM
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How does having an MBA clause allow you to do an end run around the ADA? Shouldn't he be going to the Labor Board with this? I would think they'd like to know about that little clause.

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PappaBear
April 30, 2009 9:26 PM
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In this day and age of policical correctness and being sensitive to individuals with disabilities it amazes me that any company could get away with this behavior. Where is the ACLU? Even though I'm not a fan of the ACLU is one case they should be taking on.

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Anonymous
April 30, 2009 9:27 PM
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I'm going to agree with the poster who said that this story, while sad, doesn't prove that arbitration is evil. We really don't know enough about this gentleman's case to know if he would have won a claim even if he had been allowed to sue in regular court. All we're hearing is his side of the story.

The US has a long history of arbitration of employment disputes, and its been the preferred method of most courts for settling complex employment disputes for about 50 years. I think we're throwing the baby out with the bath water here. For every horror story of someone getting \"screwed\" in arbitration, there are ten times as many about people getting \"screwed\" in traditional court room settings. Consumerist is doing its readers a disservice by not doing a better job reporting on both sides of this issue, and acting like just getting rid of arbitration would fix all of the world's ills.

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JGKojak
April 30, 2009 9:30 PM
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How can you not be allowed to sue under the Constitution period? Wouldn't a lawsuit brought under one of these clauses for, say, discrimination possibly end up declaring these arbitration contracts unconstitutional???

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ARP
April 30, 2009 10:13 PM
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@JGKojak: If you can \"knowingly and voluntarily\" waive constitutional rights. I forget which Supreme Court case it was.


Think of the cops shows when they read Miranda rights to suspects. They've informed you of your rights, so if you decide to talk, you've knowingly and voluntarily waived those rights.


Same principle applies here.

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mythago
April 30, 2009 9:55 PM
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@JGKojak: MBA means you waive your right to your day in court. That's why misbehaving companies love it.

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rugman11
April 30, 2009 9:31 PM
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To those saying that this is an example of the failure of free markets, no one has ever been forced to sign an MBA. Just as capital is free to move in a free market, so is labor. The OP could have taken his labor elsewhere or not signed a contract with an MBA. Now I am in no way in favor of MBA's, but this is not a failure of the free market because we, as laborers, have the ability to take our labor elsewhere if we don't like the policies of our employers.

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SnowflakePillow
May 1, 2009 4:13 AM
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@rugman11:

MBA is a failure of the free market when there is no competition in the amount of rights afforded customers - every cell phone carrier requires them. Just about every possible good you have to sign a contract to use requires them. Cell phones are necessary to compete in today's world so MBA's are not an issue of choice, they are an issue of corporations conspiring to eliminate our right to due process.

In your view of the world, there is no difference between a free market and an anarchic market. In an anarchic market, the invisible hand does not lead to rights and happiness, it leads to profits condensing into the hands of elites. Capitalists always passionately defend the benefits of competition - but nothing is more deathly to competition than a free market, which merely leads to centralization and monopolization (which is unhealthful when done by the government in socialism or by corporations in unregulated capitalism). What is needed is a [i]fair[/i] market, with consumer protections as thorough and inviolate as our civil rights. Sports foster better competition through standardized rules. Not all rules choke competition; there are plenty that could make it better.

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varro
May 1, 2009 5:59 AM
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@SnowflakePillow: One of the main circuit court judges in Multnomah County, Oregon ruled that boilerplate arbitration clauses are unenforceable. (I can't find the cite, but remember who the judge was - Judge Jerome LaBarre.)

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ARP
April 30, 2009 10:16 PM
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@rugman11: Ah yes, the same \"free market\" that let little kids work, had no safety regulations for workers, created factory owned towns where people would end up further in debt to the companies they worked for, allowed employers to keep wages for any reason they dreamed up, allowed them to lower wages without telling the workers....that free market?

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mythago
April 30, 2009 9:56 PM
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@rugman11: Nobody asked you to come in and give an Ayn Rand speech, okay?

The OP may not have known he had a MBA, or understood what that meant.

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HeartBurnKid uses Linux: the taint of OS's
April 30, 2009 11:00 PM
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@mythago: Or it may be a standard practice in the industry, which means that, unless he's willing to change careers, there's no escape. Not being a healthcare worker, I couldn't say on that, but that's the way it is with things like, say, cell phones.

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Red_Flag
April 30, 2009 9:53 PM
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@rugman11: Or, translated from the vernacular Randian, the \"free market\" and contracts are superior to the constitutional rights of citizens.

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TCama
April 30, 2009 9:35 PM
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@rugman11 So do away with all labor discrimination laws?

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JiminyChristmas
April 30, 2009 9:45 PM
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Let's not confuse mediation and (mandatory) binding arbitration. At least in the jurisdiction where I live, there are voluntary mediation services affiliated with the court. The goal of mediation is to facilitate a settlement without taking the suit to trial. The suit enters mediation only if both parties agree to it, and if no agreement is reached both parties are free to proceed to court.


Mediation can be a good thing that saves people time, money, and the uncertainty of a verdict in court. That said, it lends itself best to simple cases, especially those filed in small claims court.

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mythago
May 1, 2009 11:48 AM
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@JiminyChristmas: Well said. I'm all for mediation as a first step - when it's not used as a means to stall, it's a good way to try to get people together before litigation gets rolling.

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varro
May 1, 2009 6:03 AM
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@JiminyChristmas: Mediation is also useful when there's an impasse in settlement negotiations - I've participated in mediations in both state and Federal court where another judge attempts to get the parties to settle the case.

It works both in simple cases (car accidents) or more complex cases (police attack political protest - dozens of witnesses, expert witnesses in police procedure and pepper spray, and issues such as qualified governmental immunity).

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diasdiem
April 30, 2009 9:49 PM
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Is it possible to sue individuals within a company, or are they also protected by binding arbitration? The supervisors ought to be on the hook for something.

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Yamunation
April 30, 2009 10:07 PM
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What a shame. This country's laws need a major overhaul.

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Etoiles
April 30, 2009 10:26 PM
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@ Red_Flag: I know, that's why I said should have been able to. And it's definitely a crying shame that he couldn't and can't.

(I'm falling victim to the \"can't reply\" bug again.)

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ShadowFalls
April 30, 2009 10:28 PM
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Welcome to capitalism as the rich and greedy intended it to be. It is not arbitration as the the \"arbitrator\" only actually works for one side.

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baristabrawl
April 30, 2009 10:38 PM
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I don't understand how an arbitration clause could circumvent federal legislation designed to protect handicapped people.

I so don't understand arbitration clauses. However, I suspect they are going to move to being less used and hopefully there will be legislation that changes the way they're used, soon.

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igotmeajd
April 30, 2009 10:39 PM
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It's not just the \"mandatory\" language that makes the clauses highlighted by the Consumerist unfair, it's also how the arbitrator is selected. I have dealt with many arbitration and mediation clauses, and never have they been one-sided such as these.

In fair (or, fairer) contracts between parties with equal bargaining power, each party recommends an arbitrator. If the parties cannot agree on one of them in a certain time period, they then are given another time period to agree on a third candidate. If they still cannot agree within that time frame, then a disinterested third party (agreed to by the parties...usually a court official/office, branch of the local or state bar, or non-affiliated attorney) names the arbitrator.

The clauses being highlighted by the Consumerist are distasteful beyond their binding nature. The arbitrator is being named, and paid for, by the party with all the bargaining power. You can \"arbitrator shop\" and arbitrators know it...they also know that word gets around quickly in the business and legal industries. There is nothing fair about these clauses in consumer consumer contracts, especially when the average person has no idea what they're giving up, and can't fathom that it will ever matter to them until, sadly, it does.

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Corporate-Shill
April 30, 2009 10:52 PM
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Can't force abritration for criminal acts.


Violation of ADA is criminal. Time for EEOC to take action.

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BrewMe
May 1, 2009 5:27 PM
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@mythago:
ADA is a federal civil law. Violating it enables the @BrewMe:
Sorry, remove \"enact criminal charges\" and replace with \"file a lawsuit\".

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BrewMe
May 1, 2009 5:28 PM
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@BrewMe:
I really should use the 'preview comment' option.

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David Schwartz
April 30, 2009 10:58 PM
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Some people really do prefer at-will employment arrangements (where you can fire someone at any time for any reason and they can quit at any time for any reason), and we're in a constant fight with the rest of the world to let us have them.

He got the benefit of easy hiring and a higher salary from a company whose firing costs are lower. If you are hard to fire, a company will not be quick to hire you and will not pay you as much to mitigate the risk that they cannot fire an employee they do not want.

Now that he got the benefit of this in the form of being hired at the salary he got, he wants out of the costs associated with that benefit. Sorry, that's not fair.

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mythago
May 1, 2009 3:55 PM
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@David Schwartz: What are you talking about? If by \"we\" you mean the US, at-will employment is the default everywhere. Unless you have a collective-bargaining agreement or an employment contract you are an at-will employee. It is not something you 'prefer'.

It is also something that has zero to do with arbitration. Which is, by the way, something required in those non-at-will CBAs. You know, something that increase firing costs?

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Esquire99
April 30, 2009 11:01 PM
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@Corporate-Shill:
The ADA isn't a criminal statute, it's civil.

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f-words
April 30, 2009 11:18 PM
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They need to be able to reasonably accomodate an employee with a disability. It's definitely within reason for him to use crutches from time to time, even if it somewhat negatively impacts his job performance. Would they never hire someone who performed at the level he did when on crutches? Probably it didn't make that big a difference, so it's reasonable for them to accomodate his need for crutches.

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jadenton
April 30, 2009 11:35 PM
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Given the gross conflicts of interest present with the arbitration firms, shouldn't it be possible to bring a class action against the firms? Presumably arbitration law was written is such a way that the arbitration firms have some kind of minimum fairness standards they should be adhering too.

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Anonymous
May 1, 2009 2:04 AM
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Can someone please explain to me how companies can bypass the law using this arbitration. I am positive that here, in Australia, you cannot sign away your legal rights in a contract. You obligations and rights under law always outrank your obligations and rights under a signed contract.

Imagine if an employer slipped in a line in a contract that allows them to stop paying employees without them being able to quit.

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mizmoose
May 1, 2009 2:04 AM
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This is what the EEOC is for. You can't sign away your rights to let the feds say, \"No, you shouldn't treat people that way\" and then make your former employer cough up money.

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copious28
May 1, 2009 2:38 AM
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WTF??? How could anyone at the top of that company think that was even reasonable? I am really shocked that arbitration would trump discrimination laws. IMHO, that is NOT what Congress intended!

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gttim
May 1, 2009 12:48 PM
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To John: First, thanks for having the bravery to save your cousins. Sorry about the cost. Whatever the outcome, I hope you find a better place to work.

I do not have trouble with requiring arbitration. However, it should not rule out further court action. A contract should be able to say we try arbitration first. However, the arbitrators should be on a list approved by the state, and both parties should agree to one- appointment by the state if unable to agree.

It still just amazes me how people are willing to screw others over for their own benefit. I know it happens everyday, but since I would feel horrible if I did that to somebody, I assume others would feel the same. I tend to forget that not only are others willing to do that, but many get actual joy from the action.

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econobiker
May 1, 2009 2:22 PM
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Wasn't mandatory arbitration brought up by one of the contractor companies in Iraq when one of their female employees was assaulted and raped by coworkers? That she couldn't sue them for lack of security but had to pursue mandatory arbitration?

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tape
May 1, 2009 3:28 PM
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1. I will never understand why mandatory binding arbitration is legal, especially in cases where one party selects the arbitrator in all cases.

2. How can an MBA \"agreement\" trump criminal activity? Discrimination is a criminal offense. Since a crime is a matter involving the criminal and the state, I don't see how an MBA could even apply.

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BrewMe
May 1, 2009 5:07 PM
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In no way does a MBA contract override any governmental entity the right to enact criminal charges. The individual in the story should contact the US department of Justice if he/she did not reach an agreement through arbitration.

[www.ada.gov]

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Mercsenary
May 1, 2009 6:26 PM
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What the fuck is up with forced arbitration. I understand the concept behind it but hiring an inhouse arbitrator is a total conflict of interest. Instead it should be a third party arbitrator that has no connection to the company.
still though should have taken your skills elsewhere. Forced arbitration is the devil. I dont get why the courts wont hear it though. I mean its a case of labor discrimination because he was disabled.

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Blackneto
May 1, 2009 6:35 PM
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4 years ago I was asked to sign a change in my contract that, in its most basic language, affirmed that I would deny my right to jury trial and abide by arbitration.
I refused. I'm still employed and nothing happened.
I'll never sign one without the promise of a shitload of money up front.

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Rey
May 1, 2009 7:19 PM
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@Blackneto: We just received notice at my unnamed employer that we have to sign one. They say we are free to NOT sign but in doing so give up the right to bonuses, promotions, and intercompany transfers.

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trujunglist
May 4, 2009 10:13 PM
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@henwy

Best way to find out if he'd been doing the job the same with both crutches and fake leg is to read his past performance reviews. If his performance reviews were stellar up until he began having problems with this supervisor.. well, that basically speaks for itself doesn't it? You don't usually go from a 10 to a 3 without a lot of people noticing/getting fired.

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