It's absurd that you can actually waive any of your legal rights... Seriously, this is bonkers.
After the #MeToo movement revealed that forced arbitration has been used to keep sexual harassment complaints quiet, a handful of companies, including Google and Facebook Inc., agreed to get rid of it for harassment claims
Wow, how noble of them. How about getting rid of all of that BS?
How can you appeal the arbitration in court? Pretty sure you agree (when signing away your rights) that you will hold the arbitration result to be binding and you give up any potential court remedy. IANAL though.
In particular I have in mind issues of law. Things like whether a business should be allowed to withhold deferred compensation from an ex-employee who takes them to an arbitrator. Or whether a bonus for the previous year, already announced, is deferred compensation or future compensation, and therefore cannot be withheld after a layoff early the next year. Obviously some of these things are policy issues to be settled statutorily, but some also are exactly the sorts of issues to be settled by courts in the absence of statutory law, and some may involve invalidating unconstitutional statutes or parts of them.
Appeals of procedural matters also should be allowed, naturally. And procedural errors in ascertaining the facts of the case should cause de novo arbitration (or removal from arbitration and into a jury trial, if the arbitrators insist on making the sort of procedural errors that call their fact finding into question). Otherwise, fact-finding by arbitrators should not be subject to appeal, as allowing them to so be would greatly diminish the utility of arbitration.
Another thing to appeal would be the method of selection of arbitrators, the validity of their credentials, etc. But there should be fairly high bars to these (not sure how to construct them).
Granted, the appeals are unlikely to succeed, but perhaps that is because arbitration typically has an approximately fair outcome? Appeals of typical court cases aren't likely to succeed either, but we don't say that court is therefore unfair.
Yes, I'm sure, because I read your link, which says that you can't appeal the facts of the case or the merits of the decision, you can only appeal the process, which, in its own words, provides "a high standard of deference to the arbitrator."
It may be your point, but it isn't the point under debate. We are talking about whether or not the courts provide a check/balance for the decisions of the arbitration system.
What makes the most sense is that both sides have the option to accept arbitration before any trial starts. This way, routine cases can be dealt with in arbitration, and more complicated ones at trial.
What needs to be avoided is
* people being pressured into arbitration in return for something (e.g. Accept arbitration or don't get a job)
* people opting into/out of arbitration based on rulings. So, no deciding to move to arbitration because you don't like a judge, nor deciding to go for a trial if arbitration isn't going your way.
There’s a difference between a right which you can choose not to exercise at a given moment, and a right which you can waive in perpetuity.
Your example is the former. You can choose not to remain silent. However, you do not waive the right! At any time, you can stop talking.
Binding arbitration clauses are the latter. It’s not just a matter of choosing to use arbitration. You also permanently give up your right to use the courts for that matter.
> A right that you cannot waive is more of an obligation, even if it's an obligation that in theory is to your own benefit.
This is one of the silliest sentences I've read today. An obligation is you had to do something. While a right is something you can choose to exercise or not. With the right to be silent, you never waive that right as in they can never force you not to be silent. What you do is you exercise your right to be silent or you don't. You can decide when and if you speak.
The distinction between waiving and not-exercising a right is a bit of a gradient, though. Most contracts entail at least one party incurring future obligations. Any of these obligations, by virtue of not existing in the first place, will waive one’s pre-existing rights.
There are legal limits on which contracts are enforceable by law, and perhaps mandatory arbitration should be one of them. But there is always, in principle, the ability to waive one’s rights, because there’s no other logical way to voluntarily incur future obligations.
Waiving your rights is about removing future options. Since you're agreeing not to do something. That is not an obligation and the requirement do something. Not the inability to do something. One is an action the other is inaction.
If you say I agree to go to arbitration that is an obligation. If you say I will never sue and must always go to arbitration that is final. That is removing the option to sue and adding in an obligation.
> Waiving your rights is about removing future options. Since you're agreeing not to do something.
Every contract entails waiving your rights and removing future options. And tons of contracts include, as consideration, the agreement not to do something. Leases, for example. If you lease an apartment, you usually have an implied legal right to sublet; correspondingly, most landlords have a clause in the lease requiring you to waive that right, right next to the clauses requiring you not to get a pit bull or smoke cigarettes indoors or have somebody else living with you unbeknownst to the landlord.
Another example is exclusivity agreements: a shopping mall might sign a contract with Panera giving that Panera an exclusive right to sell sandwiches at that mall, which means the mall is agreeing not to lease a different retail space to Subway or Quiznos. What if they lease it to Qdoba and Panera thinks a burrito is a sandwich? That was a real lawsuit, which Panera lost, not on the grounds that it's impossible to incur a negative obligation by contract, but on the grounds that a burrito is not a sandwich: https://loweringthebar.net/2006/11/judge_rules_bur.html
There are legal rights that are protected to the extent that you cannot waive them and that any contract that entails such a waiver is an illegal and unenforceable contract. It's just that these rights tend to be explicitly stated as such in law, and the right to go to a court of law is not currently one of them. Maybe it should be, but that's a policy argument, not a fundamental argument of legal and moral principle the way you're making it out to be.
> There are legal rights that are protected to the extent that you cannot waive them
Yes. This is entirely about "legal rights". Why would you assume otherwise? And the right to go to court, the right for the law of the land to be applied, is a legal right, it may even be a human right. The US is lacking behind the world in legal and human rights, is the entire point of this thread.
> The US might be the worlds richest Country but in many areas, it's like a developing nation.
Primarily in that it's still developing rather than stagnating.
> Ok, in the developed world. And it really isn't [a ridiculous overgeneralization that "the US is lacking behind the world in legal and human rights"].
Conveniently enough, I already have a list of counterexamples for Europe in particular:
* The United States also recognizes a constitutional right to same-sex marriage, which is not at all recognized in Italy, Greece, Czechia, Poland, Slovakia, Romania, Bulgaria, Lithuania, Latvia, Estonia, Switzerland, and Northern Ireland.
* In terms of civil liberties, the US is virtually unique in recognizing an absolute right against self-incrimination and an exclusionary rule of evidence, where evidence collected in contravention of anyone's civil rights is admissible in court.
* One of the biggest controversies in recent American politics is whether to overturn the constitutional standard of jus soli birthright citizenship--the notion that any human being born on American soil is unconditionally an American citizen. No European country has this policy at all, let alone enshrined in a written constitution.
* The US does not have mandatory military service. However, Austria, Denmark, Finland, Greece, Norway, and Switzerland all do.
* Unlike many European countries, the US has a virtually complete lack of media censorship by the government.
* Austria, France, Belgium, Germany, and Bulgaria have all outlawed face coverings, while Switzerland has banned the construction of minarets. France prohibits the wearing or display of "conspicuous religious symbols" in schools, a law targeted at hijab-wearing Muslims. The United States has no equivalent laws, and any such laws would almost certainly be ruled unconstitutional.
If you're bringing in "the developed world", that might include countries with absolutely terrible human rights records like Qatar or UAE, as well as other undemocratic states like Singapore.
Not really. If I have a right to sue and I waive that right and I am not longer able to sue then waiving the right means a lot. Since I am not longer able to choose, I no longer have that right.
Also, I am pretty sure these are definitions and not interpretations. (According to the Oxford dictionary)
There are many rights you can't waive. For instance, you can't sell yourself into slavery--everyone except for hardcore libertarians is fine with that one.
And you can't waive your right to remain silent permanently. You can reassert that right at any time.
The right isn't really to "remain silent", it's the right to avoid self incrimination. If you have immunity, you still have that right, you just can't incriminate yourself.
It's absurd that you can actually waive any of your legal rights...
Employment laws in Switzerland allow some contractual issues to be freely set, some can only be changed to the employees advantage and some cannot be changed at all.
For example : Mandatory vacation by law is 4 weeks (20 days). A contract can stipulate 5 weeks vacation, but agreeing on three weeks is illegal.
Despite the fact that UBS is a Swiss bank trying to sneak an arbitration clause into a Swiss employment contract would be laughed out of court.
It's only absurd if you waive a right that is beneficial to you. In the EU we have a legal right to work no more than 30-something hours (I don't recall the exact figure).
Now, I'm fine with the idea that no-one should be forced to work excessive hours. So I have no issue with a right of this type existing.
But that's different from me choosing to work particular hours. So, in my case, that right is a restriction to my freedom that has no particular benefit. So I waive it.
You shouldn't be able to waive any right preemptively. If you choose to waive the right to trial for a current case or choose to waive the right to not work over 30 hours for now, that is fine. If you can waive the right to ever go to court or permanently waive the right to not work more than 30 hours, that is a problem.
> It's absurd that you can actually waive any of your legal rights... Seriously, this is bonkers.
I see this claim all the time in comments about mandatory arbitration clauses, but it doesn’t make sense as stated. You need to narrow it down or at least clarify it somehow.
Being able to waive legal rights is necessary for society to function. For example, I have the legal right to not give McDonald’s $1. I waive that right in exchange for them giving me a soda. I have the legal right not to go to work every day, which I waive in exchange for a paycheck. And so on.
That's a good point. I suppose the goal is that your right to a judicial process must become inalienable, much like your rights to life and freedom that cannot be waived contractually.
> I have the legal right not to go to work every day, which I waive in exchange for a paycheck
No you don't. You chose to go to work every day, in exchange for said paycheck. But it is a choice, and you can reverse it any time. Waiving the right means "in exchange for this paycheck, I promise to waive my right not to go to work for you - i.e. I am now legally your slave". You can't do that.
After the #MeToo movement revealed that forced arbitration has been used to keep sexual harassment complaints quiet, a handful of companies, including Google and Facebook Inc., agreed to get rid of it for harassment claims
Wow, how noble of them. How about getting rid of all of that BS?