Would this be practically difficult to implement? I mean, if we have to cancel existing agreements with companies that have such clauses in their contracts, then wouldn’t the companies have to immediately draw up all their contracts and get all their employees to resign them? If not, wouldn’t the deals they have with the government be immediately voided? Sounds like it could be disruptive practically.
It also lumps in sexual assault with sexual harassment. Obviously the former case is inappropriate for arbitration, but how common is it for sexual harassment cases to go to arbitration? If it is common, then this law isn’t as clear cut as it seems.
Negligent supervision doesn’t seem too broad to you?
This is the generic claim brought against a company for pretty much any tortious conduct on the part of one of their employees towards another. If I punch you in the face over a card game while we’re both out there working for Haliburton repairing Iraqi oil pumps, you sue me for the assault. Haliburton didn’t assault you, but you sue them for negligent supervision and hiring for failing to screen employees for dangerous face-punching tendencies.
And if I cheat you by bottom-dealing the card game while we’re both out there working for Haliburton repairing Iraqi oil pumps, and take your whole paycheck, you sue me for the theft by deception. Haliburton didn’t steal from you, but you sue them for negligent supervision and hiring for failing to screen employees for dangerous card-cheating tendencies.
Perhaps you could explain how this category could realistically be made broader? Negligent hiring, supervision. and training are the catch-all terms for imputing liability to the employer for the bad acts of the employee.
This issue is an excellent example of “death panels.”
In a reasonably successful effort to derail public health care, some Republicans began to claim that Obama’s plan would involve death panels, groups that would have to approve treatment for people and would more or less automatically consign the elderly and chronically ill to the wasteland of no approved treatment. They lied, in other words, or at the very least so greatly misstated the actual planned implementation that it was effectively a lie.
And of course, the outrage here on the SDMB was great. As well it should have been. One may reasonably oppose public health care, but lying about the issue, instead of making your real case, was widely condemned here on the boards.
Now the shoe is on the other foot. Now a bill is proposed which will, under the guise of fixing the egregious problem of no civil remedy for gang rapes, effectively remove binding arbitration for a whole host of civil issues.
And I say the same thing: One may reasonably oppose binding arbitration, but lying about the issue, instead of making your real case, should be widely condemned here on the boards. This bill doesn’t merely affect rapes, and opposition to it is not agreement with raping. It’s way too broad.
Not until it’s actually passed, at which point you’re offering an amendment to the bill the original amendment modified (which just so happens to amend the amended portion). If an amendment needs amending they just vote it down and start over.
Negligent supervision in the context of sexual assault or harassment doesn’t seem too broad. The text of the amendment is right there, and it specifies only such claims arising out of or related to sexual harassment and/or sexual assault claims. If you punched me in the face over a card game I’d have to show some sort of sexual basis for my claim before I could sue you in open court, yes?
If you are correct and the basic language of the amendment does not say what I think it says (and I note you have not yet responded to my previous post)… then yes, this is a clear example of the Democrats successfully utilizing the Republican tactic of dumbing down debate of a complex issue to one very simple (and very misleading phrase).
However, I will again point to Jeff Sessions, who played right into their hands by defending his no vote on political arguments rather than legal ones.
ETA: If this is a matter of the Democrats “death panelling” a debate, then I say to the Republicans: sucks, don’t it?
Is that limited at all by "any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including… " ?
As for your examples, I hope it *is *broad enough to cover regular assault too. And giving away your paycheck at a card table should get you laughed out of court or arbitration (IMO), but IMO workers at large are better off if even that loser has his day in court. But would either case apply without some discrimination or sexual harassment involved? Maybe if you cheat at strip poker?
… strictly for companies who want to win federal contracts.
Because we the people want to hold those companies to a higher standard than “the most profitable thing we could get away with and human rights be damned (even though we knew we couldn’t *really *get away with it when it went to court, but we could silence many victims who didn’t know better until we got caught, and buy many years stalling a rape victim should they ever challenge us, hopefully long enough to drive them raving mad so we can continue getting away with it)”. So many people keep ignoring the bold part, including Senators. This isn’t so much about regulating business as it is about being snobs with our tax dollars, and demanding that companies who would earn them move their ethics a little more to the side of human rights, and away from ‘profit at all costs’. So as arguments go, “Too broad!” is only making me happier with it. When Senator Franken starts his campaign to end arbitration in America, I’ll hear your “Too broad!”
I do not like the idea of companies mandating arbitration generally. It’s an advantage they don’t need or deserve. Specifically when it involves heinous felonies, and even more specifically when I am paying them. Senator Franken’s amendment only addresses my last concern.
Severable in the case of a ruling on their constitutionality, or something, yes? I doubt simply continuing to accept federal funds constitutes an automatic waiver of the clause.
Jesus, Rick, pay attention, would you. This would not remove binding arbitration for anything. All it does is set conditions on what is require to receive federal money. If a company doesn’t want a federal contract, it can bind all the gang rapes and harassment it wants.
This is basically exactly what the Republicans wanted to do to ACORN with a lot less reason and a lot broader bill.
Look, Dio, making federal funding conditional is sometimes necessary, and I have argued just that point in the past. But as the government’s purchasing decisions and entitlement programs touch just about every single company and individual in America, making these conditions overly broad or onerous unduly interferes with individual and corporate rights.
This legislation not only was too broad, it seemed to address a problem that the courts were already handling just fine with existing law. It was unnecessary and should have been voted against for that reason alone.
This is why I said “effectively” remove binding arbitration. A company whose main business is providing services to the federal government is essentially obligated to comply.
And I agree it’s not obvious this is a bad thing. Perhaps, as a matter of public policy, we wish to create a rule that recipients of federal contracts don’t require binding arbitration on any claim. I don’t agree with that idea, but it’s not an open-and-shut case either way.
But my point vis-a-vis the death panels remains. The debate here wasn’t about the wisdom of binding arbitration for negligent hiring and supervision claims, was it? It was how awful the senators were for favoring gang rape.
All I can say is gang rape is marginally better than organized death panels for our beloved senior citizens.
So that’s not simply sexual harassment or sexual assault. Title VII includes any claim arising from race, color, national origin, religion, gender, pregnancy, hostile work environments, stereotypes and assumptions about abilities, traits, or the performance of individuals on the basis of their protected status. Title VII claims have included policies for hiring employees with preschool aged children; failing to promote an employee on the assumption that childcare duties would interfere with reliable management performance; and providing service credits to employees on disability leave, but not to those on pregnancy-related leave.
But yes – the card game example was a bit far afield. Probably I was distracted over concern for my blind mother’s first appearance in front of a death panel.
Yes.
Of course, when the Republicans did it, I condemned it, as did the vast majority of voices here. Now that the Democrats are successful at it… hey, well, it sucks, eh?
That’s fine. Argue all you like that the concept of binding arbitration is sickening.
Don’t pretend that this is about gang rape. It’s about binding arbitration. If your arguments against binding arbitration are so weak that you need to disguise them as being about gang rape, maybe they’re not as strong as you think.
Or maybe it’s this: maybe you think to yourself, “Hey, I know what’s best. Binding arbitration is evil. Any tactic I use to get it killed is just fine. If the rubes can get fooled into supporting a move to outlaw gang rapes, so much the better for my cause. The greater good is gettng rid of binding arbitration, no matter what method we use to make it happen.”
If they’re working for the government, then they should be supervised by the government. I work for a private company that’s contracted by the state, and the state sure supervises us. I see nothing wrong with that. I see contracted companies as essentially being de facto public employees. Let’s treat them as such. I don’t like these companies trying to have it both ways – they want public money, but no public supervision. I’m tired of them acting like the public is their bitch. Who’s paying who here?
Those Senators were, at the least, indifferent to gang rape, and unlike the death panels, the gang rape really happened. The death panels never had so much as a theoretical basis, much less a historical one. They were a pure fabrication.
If the clauses are rendered unenforceable by federal law (and none of this implicates the proscription on impairment of contracts, in my opinion), the contracts will not have to be renegotiated. A severability clause is the device used to state that if a condition is not enforceable but the rest of the contract’s benefit can be substantially rendered to each party, then the unenforceable condition will be treated as if it never appeared in the contract.
If sexual harassment arbitration clauses for federal defense contractors are outlawed, then rather than renegotiating employment contracts for all of their employees, those clauses will be ignored, and the dispute resolution forum will be the default choice–a court.
And this is really the whole reason why Halliburton has these unenforceable clauses in the contracts. They know they’re unenforceable. They don’t care - they have a ton of shitheel lawyers who will argue and argue and argue, and delay, delay, delay. (not pointing any fingers here, of course!)
What Halliburton hopes to do is create an atmosphere where employees will not bother to go through a living hell of 4 years of the courts (and asshole lawyers) in order to get justice.
Many lawyers are more interested in arguing a fine point of law, and not in making sure that justice is done.
Many politicians are more interested in getting re-elected, and “sticking it” to the opposition, rather than serving the people.
Since my main point is that conflating the issue you raise with the spectre of gag rape was dishonest, I’m going to decline the invitation to debate the fine points of whether or not it’s good public policy to require eschewing binding arbitration. I acknowledge your point is a reasonable one; I have a differing view, and I think it’s a reasonable one, too. Perhaps a GD thread on the subject would be of interest.
Well, no, not pure. The “death panel” business arose from the grim reality that all medical care must be rationed in some fashion at some point. It’s simply a lie to say that every available resource will be used in herculean efforts to keep every single person alive. That’s true now, it will be truie if there’s a public option, and it will be true if there’s a single payer system. The lie was that the proposal would create a system that differs dramatially from the status quo. In effect, we have “death panels,” now – just not as forbodingly specific as the rhetoric envisoned under the new proposals.
I will grant that the distance between the truth and the lie in this instance is less than the distance between the truth and the lie in the death panels case. But make no mistake: each is a lie, offered up to move popular opinion in a way that the truth wouldn’t, in order to accomplish a goal.
They’re not unenforceable. The gravamen of Jones’s complaint, intentional tortious conduct, fell outside of the subject matter of the employment contract, and accordingly, the forum for resolving those outside-the-contract disputes is not determined by the arbitration clause.
But the title of this thread, and the majority of posts in it prior to my entrance, don’t discuss public money, do they? They offer outrage at the propsect of rape with no remedy. Even if I concede that the issue is solely public money, that’s not what was being argued here.
