WF isn’t the best example here. The SCOTUS case (cases, I guess, since they lumped together three) in question is about entering into a contract with a company that hires you. Whereas with WF you’re hiring a bank. Even if WF had invoked the contracts’ arbitration clauses, it’s not like they’d have kept that $140M after arbitration. And there’s still the $185M government settlement and the $480M shareholder settlement. Not exactly an unlimited right to commit petty theft.
For situations that are actually relevant here, e.g. overtime and minimum wage issues, DOL/WHD routinely recovers back wages and liquidated damages for employees, without them having to give up most of it to an attorney. Probably not routinely enough, but that’s not a feeling I have sufficient data to back up right now.
Also, completely harmoniously with that sentiment and in in no way contradictory thereto: Congress does not need to list all acts that are permissible. As a general principle, all acts are legal except those that the legislature prohibits. So Congress need not say, “Arbitration can be mandated with nothing more than a contract of adhesion.” If Congress wishes to prohibit that, then they must speak.
In just the same way, if Congress wishes to prohibit green shirts, they must speak. If they don’t, it remains legal for you to wear a green shirt, and this principle does not conflict in the least with the maxim that Congress intends what it writes.
Boiled down, your complaint is: you believe that there are better public policy choices than the ones the current Congress and President are making. I suspect this could be said by any number of people, about each of the preceding sessions of Congress, all the way back to when Washington was in the White House and Frederick Augustus Conrad Muhlenberg in the Speaker’s chair.
No. Or yes. It depends on whether you’re still asking about Congress, or whether your second question encompasses the entire body of contract law.
A contract, to be valid, has to include certain elements. You’re probably familiar with the phrase that includes “Offer, acceptance, and consideration:” a contract must include an offer, an acceptance of that offer, and valid payment. In addition, each party must have the capacity to enter in to the contract, and the intent of the parties must be in accord (a contract is not formed if the parties did not actually agree on material aspects), and finally: the object of the contract, the action which is agreed by the party receiving the consideration to do or not to do; this must be lawful when the contract is made, and possible and ascertainable by the time the contract is to
be performed. Further, the object of the contract cannot violate public policy, which most likely would void a contract to accept specific forms of injury or death.
These latter strictures are typically part of common law, as opposed to statutory law.
I welcome correction on nuance or substance from anyone who practices civil law.
Now, the question you might have wanted to ask: Does congress need to list all the different ways that a contract could be illegal or void? Congress DOES need to list any way a contract can be void in order for a party to prevail in a suit invoking federal law as the reason for a contract to be void.
I’m not sure why you would think that that is just a question that I might have wanted to ask. That actually is the exact question that I did ask. Precisely the same words.
If congress says that having your civil rights violated is a way a contract can be void in order to prevail in a suit invoking federal law as the reason for a contract to be void, wouldn’t that count as congress listing having your civil rights violated is a way a contract can be void in order for a party to prevail in a suit invoking federal law as the reason for a contract to be void.
And to quote the NLRA
This seems to be the intent of the act. To protect workers from employers.
To be honest, I read through most of it, and there are parts that I think would probably apply, but IANAL.
I know that I cannot have a contract that lets me not pay MW, or overtime, or require that they do anything illegal.
Now, the proper remedy here may be to get congress to pass a bill that reaffirms the intent that they made pretty clear nearly a hundred years ago, but it does seem as though his shouldn’t be necessary, as the intent is clear, and it may not be enough, because it does not seem that even clear congressional intent is enough to sway this court to not overturn a century of precedent.
Not that congress is all that functional these days, but if they were to pass a bill the add to the NLRB to specifically state that employer contracts cannot be used to prevent people from using class action suits against the arbitration for when they feel that their rights as workers have been violated, and SCOTUS continues to side with the employers, what would be the remedy then?
Out of curiosity, what other rights can I give up with a contract that are not specifically prohibited to that extent of wording in the NLRA?
Can I sign a contract that prevents me from exercising my first amendment rights? Not talking social media bans here, but specifically, that I am not allowed to talk about politics with my social circles?
Can I sign a contract that prevents me from owning a gun? Not bring it to work, or leave it in the car or anything. Prohibited from owning one at all.
You seem to be implying that a century of precedent was overturned. If that’s accurate as to what you’re saying, then it’s wrong. No precedent was overturned with the decision in Epic. Do you agree?
As to the intent - you may very well be right, but the intent isn’t controlling. The provisions of the law are laid out in the NLRA, what is and is not allowable, etc. The intent only comes into play when that statute itself is unclear in some way. At least, until SCOTUS actually overturns precedent and reverses Chevron.
Wait, are you asking what would happen if Congress writes a well crafted law to exclude all employment contracts and related agreements from the FAA, and the courts say “nah”? That would be bad for the rule of law. It’s already happened with a constitutional amendment, so it’s not outside the realm of possibility, but I’d say the idea is pretty far fetched today.
IANAL, but no, I don’t agree. Prior to this ruling, you could use a class action suit to contest an arbitration, and after this ruling, you cannot.
It seemed clear that it talked several times about employers not being able to interfere in collective actions. If it wasn’t clear, as you say, then intent matters.
If, as you say, your interpretation is that it’s already happened with a constitutional amendment, then yes, there certainly is a much lower bar for the court to interpret the will of congress contrary to the will of congress.
And I said nothing about “exclude all employment contracts and related agreements from the FAA.” However, contracts that involve workers abridging their rights would be.
For instance, I see nothing specific in the NLRA that prevents an employer from having an employee from signing a contract that will pay them less than minimum wage, yet such a contract is illegal, as it conflicts with labor laws. If a contract conflicts with laws about the worker’s right to participate in collective action, shouldn’t that be just as illegal?
AFAIK, this is not accurate: labor contracts negotiated through collective bargaining are free to accept or reject terms that would otherwise be illegal.
Going by how I’d like the laws (and society) in the US to function, yes. Going by recent labor law history (and societal attitude) in the US, no.
When, specifically, before this case, did a class action get upheld even though it arose in violation of an arbitration agreement?
For example, in the 2013 Eighth Circuit’s Owen v. Bristol Care, Inc., 702 F. 3d 1050, Sharon Owen sued her former employer Bristol Care. When she was hired in 2009, she and Bristol Care both signed a Mandatory Arbitration Agreement, which provided, inter alia, that both agreed:
Nonetheless, in 2011, Owen sued Bristol Care, on behalf of herself and other similarly situated current and former employees, claiming that Bristol improperly and deliberately misclassified employees like herself as “exempt” employees for the purposes of state and federal overtime laws.
That’s a class action lawsuit, and it was undertaken in violation of the arbitration agreement’s clause prohibiting class actions.
The Eighth Circuit smacked her down:
So. k9bfriender, you said “Prior to this ruling, you could use a class action suit to contest an arbitration, and after this ruling, you cannot.”
But that’s not a factually accurate statement, is it? Sharon Own tried, and the Eighth Circuit ruled that the FAA prevented it, back in 2013.
The parameters of this are not fleshed out enough to respond to. But in general, there is long standing court precedent to enforce arbitration agreements. Whack had listed several previous cases that addressed the issue. Essentially, this is status quo.
Interesting, I did not know that. I was talking about the specifics of an individual employee, not a union, but I did not know that a union may accept contracts that violate labor law.
To be fair, I don’t exactly have access to case law, so I can’t really come up with examples as easily as you can.
I don’t even have access to the case that you are talking about here, so I cannot tell how cherry picked your quotes are.
Looks to me that she did use a class action suit to contest an arbitration.
Until recently, you could use class action suit against a financial company that had arbitration clauses. I don’t have access to case files, so news articles will have to do.
It seems to me that this is saying right here that people were engaging in class action suits in violation of arbitration, and 12% of those reached class action settlement.
Several state courts have said that it is against state public policy and state contract law to have arbitration clauses in adhesion contracts. The Supreme Court has said, tsk tsk, that is not permitted under the FAA, even though the FAA contains an exemption for contracts formed in violation of state law.
That seems to me to be an extreme reading of the FAA. What say you counselor?
This is a good point. If the judges in Dred Scott had acted out of a moral sense of right and wrong, instead of a legalistic one, the basic structures by which we maintain cohesion as a nation would have been undemined, leading inexorably to a break down of national unity and peaceful governance, threatening the foundations of the nation as a whole, and almost certainly presaging strife and violence on a national scale.
So, you know, good thing we avoided all that by upholding the Fugitive Slave Act.
That seems to make my point: you claimed " Prior to this ruling, you could use a class action suit to contest an arbitration, and after this ruling, you cannot," but even accepting your read of your link, only 12% of the cases got as far as class certification and settlement.
We were trying to determine whether congress intended the FAA to act as it does today or if the Supreme Court has interpreted it to work the way it does today.
You internet screamed at me, twice, that congress intends what it writes as a means to suggest the Supreme Court was not interpreting what congress intended when they wrote that law. Then you switch gears and tell me that congress doesn’t write everything down therefore your statements are harmonious.
Except that leaves you admitting that the Supreme Court did, in fact, try to discern congress’ intent because nowhere does congress talk about the things I mentioned in post #111 yet the supreme court somehow seems to think it is in there.
Certainly you cannot say the court made the only decision possible because the law is clear on this matter. We have numerous lower court rulings the supreme court overturned as well as strong dissents from some members of the supreme court. Unless it is your contention that they all got it hugely wrong and were clearly not applying the law as was clearly written you have to allow that this is all interpretation.
I seriously doubt you can convince us the FAA is crystal clear on all of this so you are left defending a ruling because you like it and not because it is firmly rooted in law.
Over and over again in this thread I have detailed how the FAA was not originally intended to have the broad scope it does today and I have repeatedly shown that it was the supreme court which has dramatically increased the scope and power of the FAA.
It is weird that as an attorney you would defend it. The supreme court has effectively made a whole secondary civil judicial system that is extremely and obviously lopsided in its fairness, shunts almost all employees and all consumers into it against their will with no ability to negotiate a different contract that does not do that and a system where those who partake in it have no recourse of appeal regardless of what happens…even if the court blatantly and provably ignores the law.
I thought the courts were supposed to avoid absurd outcomes yet the supreme court has, as a practical matter, made it impossible to access the judicial system to fix a wrong for a huge swath of cases. They have in effect allowed a variety of scams to occur with no recourse to the court system.
Do you really think it would take an activist court ignoring the law as written to say that the people should be able to access the civil court system? A fair(er) system with an ability to appeal to adjudicate a perceived wrong?
Not to keep up the hijack regarding Dred Scott, but:
The ruling was not supported. Let’s assume that blacks were brought here purely as chattel and the intention of the framers were to keep them as chattel.
Why could states or the federal government not change that status? There is nothing in the Constitution that says such a remarkable thing. So why could Congress not say, “The status of African persons and their descendents, previously brought as slaves, shall be considered as citizens of the United States”?
They, of course, did not say that, but they said a more limited thing that they should not be enslaved in the territories and left it up to the states for the citizenship question. The property argument was absurd. I legally own an AR-15 in my state. Let me take it to New Jersey and see how this right of property works.
Dred Scott was the worst sort of judicial activism that didn’t rear its head for a hundred years. Nobody believes it was good, and I think Bricker must be arguing a nuanced position if he seems to support it.
What he is saying is that it doesn’t matter what Congress intended; what matters is what they wrote.
Why is that? Because there is no way to know how every member of Congress who voted for the bill “intended” for it to work. Even if we get quotes from the bill’s sponsor, that doesn’t mean that others who voted for it agreed with the statement. Maybe 30% of the supporters of the bill wanted it to work in this context, 30% did not, and 40% voted for the bill because they were hungover and their party leader said it was a good bill.
So at the end of the day, you have to give effect to what was actually written instead of trying to divine intent. If the law doesn’t work as intended, Congress can change the law. They can change the law today if this is a terrible result.
