Why are employers forcing employees to waive their constitutional rights? And why is the Missouri General Assembly helping employers do it? State Rep. Kevin Corlew is currently sponsoring House Bill 1512, and it would make forced arbitration even easier.
Arbitration clauses are common in the workplace. Employers stick them in employment agreements or in voluminous employee handbooks. Many employees have no idea that they are bound by an arbitration clause. Most of the time, it was just something hidden in all that paperwork they received on their first day on the job.
Yet, arbitration clauses have profound effects on workplace disputes. Ordinarily, if an employee does not get promised wages, is unlawfully terminated or suffers discrimination in the office, she may sue in court. She has the right to present her case to a jury of her peers, who decide which side is right and which is wrong.
Forced arbitration deprives workers of this right. Arbitrators are selected and paid by the parties, and because employers are recurring customers, arbitrators have financial incentive to favor those employers.
Arbitration decisions are not subject to appeal. While a jury trial is conducted in public and evidence presented becomes publicly available, an arbitration is a private, closed-door process.
All of this is unfair to workers, but of particular concern is the secrecy. First, forced arbitration deprives employees of their day in court. It denies them the opportunity to have peers hear, validate and adjudicate their experiences. It does not let them publicly confront their wrongdoers.
Second, as a condition of the arbitration agreement, victims are often also forced to sign confidentiality agreements. This means that they cannot share their story with friends, family members or support networks. Vitally, it also means that they cannot hold perpetrators of sexual abuse publicly accountable or warn co-workers. This allows an unending cycle of harassment to continue.
A recent report in The Washington Post exposed pervasive abuse at Sterling Jewelers that was perpetuated by forced arbitration. Worker complaints were hidden for decades through arbitration clauses and confidential agreements. Now, a class-action case has formed that includes 69,000 current and former employees.
Corlew’s HB 1512 would help employers silence employees and escape accountability because the bill promotes the enforcement of arbitration clauses. But while Republicans in Missouri are working to make forced arbitration easier, others are working to protect victims.
In the U.S. Congress, a bipartisan group of legislators is pushing legislation to prohibit forced arbitration of sexual harassment or discrimination claims. On Monday, all 56 state and territorial attorneys general signed a letter in support of that legislation and urged its passage. In Massachusetts, a bill is moving that would prohibit forced arbitration altogether.
Why would Missouri go in the wrong direction? At best, our legislative leaders are ignorant of how this bill impacts their constituents. At worst, they aim to tip the scales of justice away from victims and toward the powerful.
Please reach out to your state representatives and senators. Tell them to do what is right and fair: Ask them to vote against HB 1512.