
Supreme Court Upholds Workplace Arbitration Contracts - tneely
https://www.nytimes.com/2018/05/21/business/supreme-court-upholds-workplace-arbitration-contracts.html
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Someone1234
Time to pressure congress to change this.

A lot of people see SCOTUS decisions and think the matter closed, but congress
with the flick of a pen could completely ban arbitration for employee
contracts.

The employer/employee relationship is by its nature power imbalanced. If
employers band together and all require arbitration (as they likely will via a
standardised templated contract) employees cannot do much.

~~~
mars4rp
When was the last time Congress did something for the people against
corporations?

~~~
rayiner
That's a false dichotomy. Corporations are the basic units of the wealth-
creation engine that gives Americans among the highest standards of living in
the world, not to mention employs almost all of them. Doing what's good for
the corporations is usually also what's good for people.

~~~
zentiggr
Maybe in some fantasy corporation-league version of America, but I see a
constant stream of "oh, you lobbyists want concessions for your anonymous
sponsors/donors/owners? Sure, always glad to get more votes paid for!"

The only way to keep the general populace from getting trampled as far as they
will allow is to push back against all this.

I've said elsewhere, vote out every incumbent Congressperson. Once the current
paid members are gone, if the new set appears to be voting by donor status,
vote them out too.

Keep voting them out until we find a few decent souls who realize that we the
people are serious about being represented, not sold.

I would use campaign contribution reports as a "who should be first out the
door" list... individual personal donations of fixed maximum size only,
everything else counts against.

~~~
spaginal
If you want to reduce corporate influence, reduce the size and influence of
government.

The more a central authority takes and dictates, the more lobbying and money
will be the influence that runs them. When you have a powerbase of politicians
that can make or break conpanies, industries, and entire regions with a law or
regulation, you will naturally have players interested in that space working
for their own interests above all else.

~~~
zentiggr
Deregulation is the worse case in that sliding variable... an effectual
government balances between the various parties, preventing corporate abuse of
power at the expense of individuals.

When existing government gets hijacked by power brokers, that's where we the
people should step up and say no by voting out the worst offenders. Tha's our
check and balance, and where I despair of getting people to understand and
care.

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fhayde
From
[https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf](https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf)

> It is unlikely that Congress wished to confer a right to class or collective
> actions in §7, since those procedures were hardly known when the NLRA was
> adopted in 1935.

Kind of funny they use this as justification considering everything else
they've upheld that was adopted decades prior to this without knowledge of
modern custom or technology. Convenient argument when it's serving their
purpose.

~~~
gowld
In these cases, the correct SCOTUS answer is "we can't decide". The proper
response is some sort of forced decision in Congress -- In a criminal case, a
higher court can "remand" \-- order a lower court to review and decide.
[https://en.wikipedia.org/wiki/Remand_(court_procedure)](https://en.wikipedia.org/wiki/Remand_\(court_procedure\))

We need the same for bitrotted legislation.

In effect, we do -- When SCOTUS says "We don't think past Congress made a
decision about this, so we'll pick a default ruling", current Congress has
every right and opportnity to hold a vote to make a decision. If they don't,
that means they agree with the court, and just as well would have repealed the
law if SCOTUS ruled the other way.

Now, in _practice_ Congress doesn't do its job (to busy campaigning for
reelection), so inertia wields as much power as any considered
deliberation....

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mikelinington
Neither your nor the GP's point seems relevant to the quoted text, which seems
pulled specifically to paint the SCOTUS decision in a bad light. I read it as
a direct response to the claim of the employees in this case, which is that
the NLRA intended to displace parts of the Arbitrage Act. They are just saying
that, among other reasons, this was not a common policy and unlikely to have
been meant even in spirit.

They further explain their approach to resolving claimed conflict between two
pieces of legislation:

> And in approaching a claimed conflict, we come armed with the “stron[g]
> presum[ption]” that repeals by implication are “disfavored” and that
> “Congress will specifically address” preexisting law when it wishes to
> suspend its normal operations in a later statute.

And specifically for the Arbitrage Act, because this is apparently a tactic
that people keep trying:

> In many cases over many years, this Court has heard and rejected efforts to
> conjure conflicts between the Arbitration Act and other federal statutes. In
> fact, this Court has rejected every such effort to date […] Throughout, we
> have made clear that even a statute’s express provision for collective legal
> actions does not necessarily mean that it precludes “‘individual attempts at
> conciliation’” through arbitration […] And we’ve stressed that the absence
> of any specific statutory discussion of arbitration or class actions is an
> important and telling clue that Congress has not displaced the Arbitration
> Act.

So they're not saying "we can't decide," they're stating (I think): Congress
can give employees more protection in this arena, but the laws as written are
(1) not unconstitutional and (2) are not being interpreted incorrectly by
lower courts.

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nathanaldensr
This is really, really disappointing. Contracts are supposed to be fair for
both sides. In isolation, meaning for one specific purchase or one specific
job, they are. But what happens when _every_ company and employer has this
language in their contracts? What do they lose by including the language? They
lose nothing!

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koolba
This isn't disappointing at all as it reflects the state of the laws as
they're currently on the books. Desiring or determining a court ruling based
upon what you'd like the law to be rather than how it's currently written
opens the door for legislation from the bench.

If workers want the law changed to ban arbitration clauses then they should
ask their representatives to pass legislation to do exactly that. And if said
representatives won't do so then they should elect someone else next election
cycle who will.

~~~
latortuga
Okay sure. But don't lose track of reality in your quest for idealism though.

There is a vast power imbalance between worker and corporation, both money and
power. Businesses control the contracts, they have far more money, and, as a
result, they have vastly more powerful lobbying. So in practice, there is no
defense for workers anywhere! Kicking the can to "elect someone else" is just
as naive as claiming that this decision respects the law on the books.

~~~
bhups
> Kicking the can to "elect someone else" is just as naive as claiming that
> this decision respects the law on the books.

But...it does respect the law on the books. Your concern seems to be that the
law is bad, and that the judiciary ought to change that law. I don't think
there's a lot of disagreement about the former, it's the latter that's more
controversial.

From an idealistic standpoint, enacting Federal law is necessarily onerous,
owing to the requirement of a strong consensus so as to prevent a marginal
majority from shoving Federal laws down the throat of a large minority.

> Okay sure. But don't lose track of reality in your quest for idealism
> though.

Okay sure, it sounds like you don't care much for the idealistic standpoint,
so let's talk pragmatism. If we can't gather this consensus at the Federal
level, we have the levers of state legislatures to pass those same laws at a
more local level.

Liberal states have the political will, the systems, and (if we're being
frank) the majority of businesses that would be affected by Federal law
anyway. They just need to have the will and pragmatism to compromise and pass
their desired law at the state level until such a time that there's Federal
consensus for that law.

~~~
s73v3r_
"But...it does respect the law on the books."

No, it absolutely does not. It completely makes up a reason why this should be
considered any different than any other instance where things have changed
since a law was enacted.

~~~
bhups
> No, it absolutely does not.

Can you explain what the law on the books currently is, and how the majority
opinion "absolutely does not" respect it?

> It completely makes up a reason why this should be considered any different
> than any other instance where things have changed since a law was enacted.

Things have changed since a law was enacted by legislative fiat. The thesis
behind those arguing the intended function of the judiciary is that any
instance in the past where the judiciary has actually changed a law since it
was enacted is considered abuse and not to be repeated.

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tneely
Ruling can be found here:
[https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf](https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf)

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rocqua
How do arbitration clauses compare to 'no sue' clauses. By the second I mean
contracts that state one party shall not sue the other for a given thing. As
far as I know, 'no sue' clauses are unenforceable. It seems to me that
arbitration clauses prevent workers from suing their employers which would
essentially be a 'no sue' contract.

I don't think the courts would miss this, so I am probably wrong here
somewhere. Would anyone care to correct me?

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djsumdog
I'm curious about this too. I thought arbitration clauses meant that for the
conditions listed in the contract, you have to go through arbitration and wave
your rights in going through the courts.

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loteck
For those living in California, this issue of requiring arbitration contracts
in the pre-employment stage is under consideration from the state legislature,
and the bill has some heat on it.

 _This bill would prohibit an employer from, as a condition of employment or
as a condition of entering into a contractual agreement, prohibiting an
employee or independent contractor from disclosing to any person an instance
of sexual harassment that the employee or independent contractor suffers,
witnesses, or discovers in the workplace or in the performance of the
contract. The bill would also prohibit an employer from requiring any
applicant for employment or prospective employment or any employee to waive
any right, forum, or procedure for a violation of any provision of the
California Fair Employment and Housing Act (FEHA) or other specific statutes
governing employment, as a condition of employment, continued employment, or
the receipt of any employment-related benefit. The bill would also prohibit an
employer from threatening, retaliating or discriminating against, or
terminating any applicant for employment or prospective employment or any
employee because of the refusal to consent to the waiver of any right, forum,
or procedure for a violation of specific statutes governing employment. The
bill would establish a specific exemption from those prohibitions. Because a
violation of these prohibitions would be a crime, the bill would impose a
state-mandated local program._

[https://leginfo.legislature.ca.gov/faces/billTextClient.xhtm...](https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB3080)

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djsumdog
Another thing that makes me want to move to California. CA laws ban non-
compete agreements with the state and there seems to be a tremendous amount of
laws geared to protect the employee.

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dctoedt
Purely as a matter of statutory construction, Ginsburg's dissent seems better
reasoned.

~~~
notyourday
Her dissent is "I wish I could write legislation from a bench and darn we
don't have enough on our side".

It is _great_ that SCOTUS is starting to uphold the laws as they are on the
books. Frankly, the idea that not legislators but the courts get to write the
laws should be abhorrent. Courts need to stick to "is this law contradict
other laws and hence is invalid" decisions.

Want to change the law? Get congress and senate to pass a new law and have a
president sign it.

~~~
Bartweiss
This seems like a particularly weird place to lay charges of activism.

The majority decision claims "It is unlikely that Congress wished to confer a
right to class or collective actions in §7, since those procedures were hardly
known when the NLRA was adopted in 1935." That's either an activist position
or an original intent position; it relies on comparing circumstances today to
the circumstances Congress is presumed to have had in mind.

The Court's current originalists are textualists to a man, and have
consistently rejected arguments of the form "this law's authors didn't
anticipate modern conditions". But today, they decided to restrict a right
provided by the text of the law, and did so by appealing to circumstance and
intent. (edited for clarity)

Legislation _was_ written from the bench today, and it wasn't Ginsburg doing
it.

~~~
notyourday
Law says X. New condition Y shows up. The law does not magically become X'
where X' accommodates for Y.

If you want X', then pass the law that changes X to X'.

Edit: I'm editing this as NH blocked me from replying:

> Sure, we agree on that. But Law X will interact with condition Y somehow, so
> the question is what property of X is preserved when addressing Y. This is a
> pretty fundamental debate between constitutional scholars, not just a
> lecture on how laws work.

I apologize if it came across that I was trying to lecture anyone on how the
law works.

> Law X says "the right of the people to keep and bear arms shall not be
> infringed". Condition Y is the development of new types of arms after the
> amendment was ratified. Textualists and original meaning scholars say that
> the text of the law should be preserved - the right to keep arms should
> remain uninfringed. Original intent scholars say that the intended effect on
> the world should be preserved, and then we have to decide what that is - to
> keep flintlock weapons legal, to keep military-grade weapons of the day
> legal, or something else?

It is the "Freedom of the press" argument. Does it mean that only "press" as
it existed at the time is covered? The answer, in my opinion, based on the
_current body of law_ is "No" because we do not have a law on a books that
restricted the freedom of the press to something other than a totalitty of
abstract idea of "press" and abstract idea of "freedom". If we did, and if
that law was found to be constitutional, then the newer law would have trumped
the old one.

This applies to the existing argument. I simply believe that Gorsuch and
Thomas arguments have been misinterpreted. They are not some evil masterminds
that are able to speak out of two corners of their mouth. They are
originalists and they are applying a very simple "is there a law that has been
passed which is more specific and was not found to be unconstitutional that
affects the current issue? Yes => defer to new law. No=> defer to the original
law"

~~~
s73v3r_
"Law says X. New condition Y shows up. The law does not magically become X'
where X' accommodates for Y."

But that's exactly what the majority decision here is saying! "Since class
actions didn't exist back when the NLRA was enacted, we need to accommodate
the NLRA for class actions" The court literally made up what they felt should
happen!

~~~
notyourday
FAA predates NLRA and NLRA did not define that it gets to override FAA.

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s2g
Time for the big tech companies to double down on their no poaching/wage
fixing agreements.

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bitbang
Perhaps open-source software licenses should start including a stipulation
that anybody using open-source software in any product they produce or
consume, must submit to arbitration for any software patent suits.

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JTbane
Seems like a net loss for workers of all kinds.

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TheCoelacanth
"The rule of law no longer applies in the workplace."

    
    
      - SCOTUS

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Karishma1234
This is indeed a great verdict. It was 5-4 decision with all 5 conservative
appointed judged voting in favour. Had Hillary won elections it would have
been other way round.

~~~
gowld
Also might have gone the other way if the Congress hadn't unconstitutionally
held a Court seat vacant in 2016.

