The House Judiciary Committee's Subcommittee on the Commercial and Administrative Law is scheduled to mark up H.R. 3010, the Arbitration Fairness Act of 2007, at 12:30 p.m. on Tuesday, July 15, 2008. The Act, introduced last year by Rep. Henry Johnson (D-GA), has 95 co-sponsors, and an identical bill has been introduced in the Senate (S. 1781).

The Act would invalidate any predispute arbitration agreement in employment, consumer, or franchise disputes, or statutory civil rights claims.  Moreover, it would take the issue of arbitrability away from arbitrators and place it before federal courts.  The Act would exempt arbitration provisions in collective bargaining agreements from all of the foregoing.

Employers -- and other business people -- must follow this legislation closely.  Check back here at Workplace Horizons after the mark-up for additional information.

Witness statements from the December 5, 2007 hering by the Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Property Rights  on the Arbitration Fairness Act of 2007 are now online.  For a faster and more entertaining summary, read The Consumerist's "live blog" of the hearing.

• WATCH LIST:  Arbitration Fairness Act of 2007

Congressional Republican leaders today unveiled a new website and report entitled: “Death by a Thousand Cuts: Democrats’ War on American Jobs,” which it describes as “a new report cataloging a Democratic agenda that threatens millions of U.S. jobs and family budgets at a time when many Americans are grappling with the rising cost of living and record tax burdens.”

The 58-page report covers a host of issues, such as tax increases and spending measures, that the authors contend will cripple an already “vulnerable economy.” It also makes clear the positions of the Republican leadership on a number of bills on the WorkplaceHorizons.com Watch List.

Click to read more ...

Ellen Dannin is a Penn State University Law Professor , whose intriguing recent book, Taking Back the Worker’s Law, outlined a “long-term litigation strategy designed to overturn the cases that have undermined the NLRA and frustrated its policies.” Professor Dannin recently wrote an article supporting the Arbitration Fairness Act’s proposed ban on pre-dispute employment arbitration agreements.

The article, entitled Ending Privatized Workplace Justice – Why We Need the The Arbitration Fairness Act of 2007, appeared on Jonathan Tasini’s blog, Working Life.

Professor Dannin begins by stating: “You may be among the millions of American workers who has been forced by your employer to give up important legal protections.” From the use of the word “forced” in this opening sentence, the reader understands that the Professor contends that an employer shouldn’t be allowed to determine the conditions under which it will offer jobs. Here are the primary reasons that the Professor (and others) cite:

• The system is weighted in the employer’s favor;
• Arbitration is more costly for employees than court litigation;
• Arbitration decisions are usually not made public; and
• Employment arbitration waivers are not “knowing, intelligent, and voluntary,” because employees can’t understand the legal language in the agreements, employees don’t understand the nature of the rights that are being waived ( from due process to the right of review on appeal), and “few people can afford to turn down a job just because they are giving up future rights that may never come in to play.”

While we disagree with most of these statements – especially the ones that suggest that people aren’t smart enough to understand voluntary rights waivers – they all seem to argue for safeguards in the current system instead of an outright ban on arbitration agreements.

• WATCH LIST:   Arbitration Fairness Act of 2007

The House Committee on the Judiciary has posted on its website the statements of the witnesses at today's  hearing on the Arbitration Fairness Act of 2007 (H.R. 3010).  Click on the witness' name to view their statements. 

Also, the Consumerist blog posted running commentary on the proceedings with a strong, but humorous anti-mandatory arbitration point of view.

It appears that the Hearing focused more on consumer arbitration than on employment arbitration.  It also appears that there was not much mention of the fact that consumers have the right not to enter into those contracts if they do not want to.  While one cannot help but feel sorry for the woman who lost her personal fortune due to alleged misconduct by the Coffee Beanery, it does not appear that anyone held a gun to her head and forced her to buy a franchise under conditions she found unacceptable at the time.  There were repeated suggestions that her right to a trial were "taken away."  Didn't she agree to waive those rights in exchange for the right to purchase a franchise?  It seems that if she could afford the $375,000 it took to open the store, she could have afforded to pay an attorney to review the franchisee agreement and explain the arbitration clause before she signed it. 

There seems to have been an assumption on the part of some witnesses and Congresspersons that arbitration is a rogue process slanted against the little guy.  While we cannot comment on consumer arbitraion, in our experience, the American Arbitration Association's employment case rules provide an equitable alternative to litigation that is beneficial to both employers and employees.

• WATCH LIST:   Arbitration Fairness Act of 2007

By Richard Hankins

In a recent interview with the publication Employment Law 360, I was asked “ Which aspects of employment law do you think are in need of reform, and why?” I responded:

Litigation of employment disputes takes too long and is far too expensive.  We lawyers benefit greatly, but at the end of the day I don’t think many plaintiffs or defendants feel very good about the process. We’ve had enough experience under our employment laws to be able to figure out ways to streamline resolutions of most of these issues. For example, discovery should be less oppressive, and I think the courts and congress should focus on encouraging, rather than discouraging, arbitration agreements.

This does not seem likely to happen, however.

Tomorrow, at 2:00 p.m., the U.S. House Committee on the Judiciary, Subcommittee on Commercial and Administrative Law will hold a hearing on the proposed Arbitration Fairness Act of 2007 (H.R. 3010), which would ban pre-dispute arbitration agreements regarding employment, consumer, or franchise dispute claims.

The following witnesses have been announced:

Click to read more ...

The U.S. House Committee on the Judiciary, Subcommittee on Commercial and Administrative Law has scheduled a Hearing on the Arbitration Fairness Act of 2007 (H.R. 3010) for 2:00 p.m. on Thursday, October 27, 2007. Witnesses have not yet been announced. The bill would declare that no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of: (1) an employment, consumer, or franchise dispute, or (2) a dispute arising under any statute intended to protect civil rights or to regulate contracts or transactions between parties of unequal bargaining power. Arbitration provisions in collective bargaining agreements would be exempted from the Act and would remain lawful and enforceable.

• WATCH LIST:  The Arbitration Fairness Act of 2007