I’m happy to report that the Springfield News-Leader has published an Op-Ed piece I wrote explaining why it’s unfair to permit forced arbitrations in employment situations. That editorial can be found on the newspaper’s website here, but here’s the full text of what I wrote:
Congress should pass The Arbitration Fairness Act of 2015
November 18, 2015
The Arbitration Fairness Act of 2015, recently introduced into the Senate, is a long overdue legal change which would prevent employers from requiring people to give up their constitutional rights in order to get hired. Many Americans have unknowingly agreed to give up those rights and submit any disputes to binding arbitration, usually because these provisions are buried in the fine print. The AFA would prevent those kinds of hidden provisions.
The Bill of Rights to both the United States Constitution and the Missouri Constitution specifically state that the right to trial by jury shall be preserved. The Framers did that because they knew that a fair legal system must have an impartial and objective decision-maker. While arbitration sounds good in concept, when applied to employee claims it is deeply flawed and unfair to the employees, because the deck is stacked against them.
The biggest problem is that arbitrators can’t be objective, because they have their own competing financial interests. The employer gets to pick the arbitrator, and the arbitrator knows that they won’t get hired next time if they rule against the employer today. The need to shield decision-makers from this kind of financial pressure is exactly why the Founding Fathers wrote in our Constitution that federal judges are appointed for life and that their pay can never be reduced (Bill of Rights, Art. III, Sec. 1). Those safeguards don’t exist in binding arbitrations.
Second, in arbitration there is usually no requirement that the arbitrator have any legal training or that they follow the law. It seems absurd to think someone who’s unfamiliar with the law can intelligently or adequately decide a legal dispute, yet that frequently happens.
Third, there is no way to appeal an arbitration decision, so mistakes can never be fixed. In our court system, appellate courts provide a safeguard to fix a judge’s mistakes. That oversight doesn’t exist in arbitration.
Last, there are no rules in arbitration. Unreliable evidence can be used, and witnesses can be sprung with no advance notice. Our court system’s rules of procedure and evidence, developed over hundreds of years to impart fairness and predictability, simply don’t apply.
Employers defend arbitration by claiming that the employee agreed to it. The simple truth, though, is that the average employee has no idea what binding arbitration is, or how unfair it is in practice, until after a dispute arises and they consult with a lawyer.
In short, employers use binding arbitration provisions because they want to make sure it’s not a level playing field, and because they fear the extraordinary power that 12 ordinary citizens are vested with under our Constitution.
Only Congress can rectify this injustice. The time has come for Congress to outlaw forced arbitration for America’s workers. The Arbitration Fairness Act should be passed, making binding arbitration agreements enforceable only if entered into after a dispute arises, not before.