“We all live in …” is often part of a solidarity rallying cry, like “We all live in Wisconsin” expressing unity against union busting, or “We all live in Bhopal” showing support after the devastating 1984 gas disaster. ("We all live in a Yellow Submarine" does not count!)
So today, we all live in Arbitration Land. If it takes professional dancers to make you understand that you live there too, then so be it. In this case, those dancers would be the Oakland Raider cheerleaders who are trying to file a class action against the Raiders for “routinely breaking California labor law” by being paid less than minimum wage and working under “a paternalistic set of rules that not only infantilizes grown women, but also makes demands that no employer should have the right to make.” Plus, they get paid only once, at the end of the season.
I say “trying” because then this happened:
In the team’s first official response to the lawsuit, which was filed Friday, Raiders’ attorneys say that when the Raiderettes signed their contracts, they signed away their rights to sue in court.
Like many lopsided contracts that favor employer rights over employee rights, the Raiders claim that the cheerleaders' contract requires arbitration. The Raiders have asked Alameda County Superior Court Judge Wayne Carvill to put the lawsuit on hold and force Lacy T. and Sarah G. to plead their case with the NFL commissioner.
Rather than presenting their case before an impartial judge, the women's claims would be evaluated by NFL Commissioner Roger Goodell, who would be free to ignore rules of evidence, rules of discovery and state labor laws. He can demand the whole process be cloaked in secrecy, and he can also demand the outcome be kept confidential. The cheerleaders would not be able to appeal in any court or forum.…
Unfortunately, these clauses are showing up everywhere - that is, since the U.S. Supreme Court allowed them to in 2011 and again in 2013. Check out this column today from the Alliance for Justice’s Nan Aron. Just in the employment area, these clauses are now very widespread.
More than a quarter of American companies, employing some 36 million workers, or one-third of the non-union workforce, say they require arbitration for employment disputes. The [National Employment Lawyers Assn.], which supports voluntary arbitration, says the practice not only denies American workers access to justice, but from the get-go stacks the deck against workers, who often must agree to forced arbitration as a condition of employment.…
Last spring, two members of Congress, U.S. Sen. Al Franken (D-Minn.) and U.S. Rep. Hank Johnson (D-Ga.) introduced the Arbitration Fairness Act of 2013. It would amend federal arbitration law by making it unlawful for employers to impose arbitration on employees, except when they knowingly and voluntarily agree to it after a dispute arises.
Unfortunately, the issue is not at the top of anyone's most pressing political list at the moment. But it should be.
Welcome to Arbitration Land, a place where none of us want to reside but where we are increasingly being forced to live. For example, do you use Dropbox for your files? Then you probably received an email lately telling you that unless you opt out of the brand new forced arbitration clause in your terms of service, you will never be able to sue Dropbox even if the company cheats you.
Some groups who are part of the coalition, Fair Arbitration Now, have started a petition effort to “call on Dropbox to remove from its terms of service the language that undermines our constitutional rights to justice.” In other words, Dropbox needs to drop its forced arbitration clause. Please sign here!