The Franken “Anti-Rape” Amendment to H.R.3326

“To prohibit the use of funds for any Federal contract with Halliburton Company, KBR, Inc., any of their subsidiaries or affiliates, or any other contracting party if such contractor or a subcontractor at any tier under such contract requires that employees or independent contractors sign mandatory arbitration clauses regarding certain claims.”

Contracts required by employers are notoriously one sided. The justification is that the publicity,  legal fee’s, time, “efficiency of proceedings”,  and unscrupulous employee’s seeking money, all deprive the company of resources. From the Heritage Foundation:

When a disgruntled employee files a lawsuit that goes to court his employer must pay tens or hundreds of thousands of dollars in legal fees. Even if the courts reject the allegation as frivolous employers must still pay the lawyers. That allows unscrupulous employees to use threat of going to court to win large settlements from their bosses for baseless claims. Guilty or not guilty, the employer loses money that could have been used to expand operations and hire more workers.

I find myself asking the most basic of questions: Do I want to live in a society that imperils employees and the public to the benefit of companies?

The Unequal Bargaining Power is likely the most egregious element of this entire equation.  The public is at the mercy of these company’s that set terms which violate basic civil rights.  It is accepted under the notion that America preserves the freedom to contract.  The the free market will turn around and offer the consumer another alternative. It doesn’t. Think of the hundreds of contracts in which you could not alter. If you didn’t agree to the one-sided terms then you don’t get a cell phone, no internet access, or the hundreds of activities that hinge on assent. It is unrealistic and naive to believe you can just avoid these contracts, either assent or be unemployed – we need the most basic consumer protection for insulation against unfair “agreements”.

ADR is  slang for a collection of private enterprises which are for profit. They give presentations to big companies like KBR showing the great cost saving benefits.  The result of this is that ADR companies have a vested interest in victory for the client (in this case KBR). In many cases the judges arbitrating the claims are weeded out so that those who rule for the victims will eventually be assigned no more cases. The “free market” emphasis is quick resolution,  low verdicts, and a corporate slant with no appeals… All reinforced by judges who are under selective pressure (aka their jobs depend on it) to deliver.

This means that companies using ADR have effectively found a scheme to skirt the public trial system, in which hundreds of years of safe guards have been established. I take direct issue with The Heritage Foundation has this notion that our legal is wrought with foolish judges and runaway juries set to destroy the corporate person- it is a lay understanding of the judicial system and this ignorant understanding must be countered.  Further, using ADR actually hurts the public legal system because precedent (common law) is never set nor is there ever any accountability behind secret ADR doors.

Lastly, faulty statistics have been presented by ADR proponents.  I will defer to Senator Franken and his short question to an ADR firm that speak to absurd nature of “quantifying plaintiff success”.

ADR is a potentially dangerous tool that companies have realized is able to cap liability at the expense of justice.