I'm really glad to hear that Google made this step, now if they would drop the overly expansive ownership claim in their employment agreement and the right to surveillance on personal property it would be a much more employee friendly place.
I also hope that it gives them an edge in hiring which would encourage other employers to follow suit in order to be competitive.
If any Google employees in California are potentially interested in doing something about this, contact me at firstname.lastname@example.org.
(Google employee, not involved in anything to do with employment contracts)
Yeah, that particular clause gave me a looong pause before signing their contract, in fact I even seriously considered taking one of the other offers I had. This is why you see all those "happens to be owned by Google" disclaimers on open source projects. This means the person wrote this code on their own time, yet it's owned by Google anyway, which IMO is total employee-hostile bullshit.
I would not sign something like that contract today. At the time, though, the money differential and the allure of having Google on my resume outweighed the concerns. I have since discovered other companies can be a lot less possessive of the stuff I build on my own time and dime.
I've been seeing wording to that effect in nearly every contract I've been presented with for years now. Every time, I speak up and suggest replacing it with wording that is much more restrictive (they can own anything I make using their resources or intellectual property, otherwise I own it).
I have yet to have a company not agree to this change.
Google's statement was that Google would not make any changes in the employment agreement and signing the agreement was a condition of employment, thus by refusing to sign the agreement, this person had 'voluntarily' chosen not to work at Google.
Can't really argue with their reasoning.
I mean I get it (sort of), early on there wasn't really any "moat" to protect the business, so they had to put shit like this in their contracts lest someone goes off and upends their entire business model. But that's no longer the case. Their moat is _insanely_ wide. They don't have to worry about employees' side projects anymore, and they haven't had to worry about that for about a decade and a half now.
Likewise, their trading windows for RSUs are bullshit. There aren't (or at least weren't when I was there) any trading windows for employees below director level at MS, and I knew more about what's going on there than I ever did at Google. There's this illusion of internal transparency (created mostly by weekly TGIF where people get to pat themselves on the back for projects that will soon be canceled, but in the meanwhile can be used to get a promo), but nobody really knows anything material for real. The only exception I can recall is the TPU which was announced internally about 1.5 years before anybody outside Google knew anything about it. And it didn't move the stock one bit as far as I can tell. In fact, TechCrunch had the "internal" announcements before TGIF 90% of the time.
Fair enough, they can decide their terms. Honestly, I wouldn't be interested in working for Google in the first place, but if I were, that would put an immediate end to my interest.
Not necessarily but somewhat practically. I've applied internally at 2 of the big 5 companies for outside activity projects and 1 was denied and the other was approved. It definitely blacklists a ton of ideas which sucks but it is possible (my side project which got approved has a main competitor which sold for over a billion USD).
I recently turned down an offer in CA despite thinking I read something along those lines taking it as a sign of toxic culture. Another place had such a policy but gladly agreed to drop it.
It says that if you do the work on your own time, with your own equipment, and without using any of your employer's trade secrets, the employer can't claim ownership of it unless it relates to the their business or R&D.
I think the issue is that large companies like Google do so many things that almost anything involving software or the internet would relate to their business and not be covered by the law.
I had a conversation with a CEO once on this very topic and he said, "Remember, it doesn't matter whether the suit has merit or not as long as the company is willing to sue you. The company has the money and resource to drag it out in the court to force you to sign over the IP."
I wrote a project at Google that had nothing to do with Google's business, in fact, they explicitly had chosen to not get involved with that whole area at all (Bitcoin). I applied for ability to open source it under the Google name and was denied, I asked for a copyright release back to me and was also denied. The open source programmes office had decided they wanted my project dead and preventing me from doing anything with it was their tool.
Eventually I was able to get these decisions overridden by escalating up (way up) the management chain, but it was a huge pain and the OSPO decided that the exemption applied only to me, not other Googlers, so of course the moment the company hired someone else who happened to be involved with writing the "Bitcoin Core" software already, they tried to force him to exit the project and the same fight had to happen all over again (with more escalations to top management).
The whole nonsense with someone in middle management (who shall remain nameless) deciding to kill spare time projects because they personally didn't like the idea really turned me off to these clauses. Google doesn't need them, they aren't threatened by side projects of employees and the whole thing causes far, far more drama than it can possibly ever avoid.
Google should not have the ability to claim ownership on unrelated work that does not use company time or resources unless _I_ _voluntarily_ relinquish such ownership. Google should have no business whatsoever interfering with what I do on my own personal time. Nor should I have to make anything open source. Nor should I need to ask anyone's _permission_ to utilize my own time as I see fit. You can get these terms with other companies, if you ask for them.
The only exception I think is reasonable is if my project discloses Google proprietary information in any way, or directly competes with Google, in which case Google should be able to terminate my employment.
This would be fair. What Google is doing now is slimy AF.
You aren't actually legally required to go through IARC. The contract isn't enforcible in CA if you really don't compete, but I have prewritten verification of that now, and it was painless.
IME, Google's earned the benefit of the doubt in this context.
There is literally hundreds of years of case law on this - you may not know that modern employment law descends from acts like the "masters and servants act" - guess which one we are.
If it wasn't planned through the usual company command-and-control chain of command, it obviously should be outside company time when you're at home.
What is “your own time” as a salaried employee payed for work product not hours on the job site?
California labor law section 2870
(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except ...
It then goes on to carve out some exceptions. The one that Google leans on is this one:
(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer;
Google argues that they anticipate researching and developing anything you might be interested in working on so its theirs. In my case I pushed legal to say, in writing, that even if I wrote an iOS kitchen timer application on my own time with my own equipment, then Google would own that app. My attorney suggested that if I sued them they would likely lose, but if I sued them they would stop employing me anyway, so if I really wanted to go into the Kitchen Timer app business I should just quit rather than risk Google making a claim to my IP that I would have to pay expensive legal fees to get invalidated.
This section of the code has been litigated many times and the general consensus is time that you are both not at work, and you aren't required to be at work, can be considered "your own time" by this statute.
They can quit if they want time that the employer does not deign to grant them.
In my more cynical moments I think this is the prevailing view in American tech.
EDIT: Moreover, I think that essentially what Google is doing here is having you sign away things which they otherwise could, and would were the assignment provision not permitted to them, simply prohibit outright via a during-employment non-compete, which even California (with it's unusually firm stance against post-employment non-compete) is generally fine with.
Criticizing the notion of "own time" when the people who effectively have the power, and the greater share of organization (both extant and allowed), perpetuate that notion seems like a less-than-useful use of time.
In the state of California, there very much is strong protections for workers intellectual property.
And the courts do not share your opinion on what is someone's "own time" or not. The courts instead protect workers.
It is possible that Google has made its employees sign some illegal contracts, that aren't enforceable in court. But if this stuff theoretical went to court, the law sides with workers.
Yes I do.
> Google claims ownership even on the stuff that you do on _your own_ time, like nights and weekend
On what basis, as a salaried employee paid for work output and not time-at-a-place, are evenings and weekends described as “your own time” any more than any other time?
On the basis that the contract says "40 hours a week". I don't owe the employer jack beyond that.
It's extremely rare for salaried worker contracts to say that.
Not sure I've seen this before, do you have examples?
Just to be clear, it says "new" development while you're employed by Google, they don't claim to retroactively own your prior works pre-employment. I'm sure they ask you to declare it though so it's clear what you built before joining.
Wait, what? I don't think I've seen that before, what does this mean exactly?
This is coming from a firefox-using privacy paranoid Googler.
I have no idea what this guy is talking about.
It just blows me away how lazy or thoughtless most people are. It’s the company’s network or machine or both. The business done on there should be for work for them and nothing more. You breach ethical lines when you start doing personal stuff unless stated otherwise in your contract/agreement with them.
If I gave you my laptop to borrow for a day, you bet I’ll be making sure you didn’t do something funky to it. I’ll also be making sure you didn’t do something to get me on a government watch list. If there’s a reason to try to get statistical data from your usage, I might check that out too.
To me, it’s common sense, it’s not yours so respect it for the reason it was given to you to use. Period.
For your personal stuff: don’t trust it on their network or with their software. You exist to make them money regardless of whether you get paid directly for it. Assume 0 privacy on the clock and that your device might be compromised if used on their network, so just don’t do it.
I agree it's shady, but I suspect it's there so that they don't have to specifically negotiate to add it when a special-case deal is agreed to. (They may say they don't negotiate, but there are exceptions at any company.)
They can't seriously expect their standard form agreement to stay NDA-confidential when they've had 6 to 8 figures of people sign versions of it, regardless of what the agreement requires. If there has ever been litigation over Google's legalese - even a dispute over whether forced arbitration applies - the copy in the court record is probably either public or unsealable upon request to the court.
(I'm a former Google employee, didn't have any role related to employee contract language, not a lawyer, certainly not speaking for them.)
Yep. Basically the same logic as companies with competitive salaries trying to keep wage info quiet, even in the age of Glassdoor. It's not that there's something to hide about the standard version, and it's not that the terms or even text will stay private. But it adds a hurdle to people comparing notes on exactly what they signed, and when somebody does get a special exemption, it stops them putting up a point-by-point guide for everyone else.
> They may say they don't negotiate, but there are exceptions at any company.
Presumably Google is big enough to have standards and make case-by-case decisions, but it's sort of horrifying how many smaller companies approach contracts as an exercise in seeing what they can get away with. Employment-prohibiting noncompetes and personal-time invention assignment clauses get casually tossed in, then pulled back out after no greater negotiation than bothering to ask.
It's not hard to see why contracts are under NDA when so many companies pretend their ridiculous terms are a standard form that everyone else signed.
So to make it harder for labor to organize, basically.
It's not as directly defensive as salary hiding, which can obviously help conceal everything from wage collusion to Ledbetter v. Goodyear style inequities. But it still stops labor from sharing information and helping to share in concessions.
I didn't include it above, but a related part is that layering on NDAs makes it harder for non-employees to get involved. If you post your whole contract online, a random employment lawyer might happen by and go "hey, you're getting screwed, 3.A.ii is non-standard and probably illegal". But if you restrict it to employee viewing and low-specificity discussions, you're less likely to have lawyers or activists get involved unprompted.
Even more worrisome.
There where agreements about what sort of offence justified monitoring at work it had to be a serious offence for example.
I don't think I've ever logged in to my Corp account from any non Corp device other than my phone, which uses a work profile for exactly that reason.
+1. Google gives you a corp phone and computer (even multiple ones, if needed); why the heck you'd want to use your personal devices? Plus using a personal device is strongly discouraged.
Also, all the companies I've worked before had similar clauses, and would always push iOS or Android certificates into your phone, so they can remote wipe the device when you leave company.
Seems fairly standard thing to me: no company would want their confidential information lying around in a bunch of personal devices. Calling it "Personal surveillance" seems ridiculous.
Now, some of the nooglers sitting near me seem to think they're entitled to one, so maybe the messaging has changed. but I just looked it up and the language is: "Full-time Googlers with a business need are eligible for one Google-paid mobile phone and SIM"
Many Googlers I know have Corp set up on their personal phone.
If you ever have had an on-call shift, or had to log in remotely to perform some work function? If so, then you qualify. You probably also qualify for them to pay for your home internet.
> Many Googlers I know have Corp set up on their personal phone.
That's stupid. Seems like a good way to get all of your data wiped off of your personal phone.
What is the company cost of the average engineer at google? It must be like...at least $300k or $400k/yr. They will pay another $600/yr for a phone and service for you if they think it will improve your productivity.
They do hand out corp laptops like candy, which is great, but if you need to test software you're developing on a specific configuration, you basically have no choice but to use personal hardware. So let's say you're developing graphics code for Chrome, and there's a bug that only reproduces on a specific GPU - and you've got one at home. By doing that on your home PC have you now technically tainted it as a work machine even if you never checked out corp code onto it?
I guess alternately you just get your boss to expense a GPU and a PC and get all that set up and you can actually repro the bug like 4 weeks later once the purchases go through. Maybe corp purchasing is faster now than it used to be.
If you brought your own GPU in to do debugging for work, and you end up frying it(lets say from the bug), would you expect google to reimburse you for it?
With any company that I've experienced, there is pretty much never a need to use personal stuff for work reasons.
On a throwaway for obvious reasons, but this is from an employment contract I've seen in the past:
"I acknowledge that I have no reasonable expectation of privacy in any computer, technology system, email, handheld device, telephone, or documents that are used to conduct the business of the Company. As such, the Company has the right to audit and search all such items and systems, without further notice to me, to ensure that the Company is licensed to use the software on the Company’s devices in compliance with the Company’s software licensing policies, to ensure compliance with the Company’s policies, and for any other business-related purposes in the Company’s sole discretion. I understand that I am not permitted to add any unlicensed, unauthorized, or non-compliant applications to the Company’s technology systems and that I shall refrain from copying unlicensed software onto the Company’s technology systems or using non-licensed software or web sites. I understand that it is my responsibility to comply with the Company’s policies governing use of the Company’s documents and the internet, email, telephone, and technology systems to which I will have access in connection with my employment."
tl;dr: Any device you so much as check your work email on (which taints it as a device "used to conduct the business of the Company"), is subject to search by the Company "for any ... business-related purposes in the Company’s sole discretion" (meaning the stuff about software licensing is superfluous). So ultimately the employee has, as stated, "no reasonable expectation of privacy".
This is a case of reach-as-far-as-you-can lawyer'ing in a setting where there's likely to be little push-back from most job candidates. Takeaway: Go over this stuff with a fine-tooth comb and threaten to turn down offers from companies who try to pull this. Then if you _have_ to take the job, keep a hard boundary between your work and personal systems.
"Keep a hard boundary between your work and personal systems" has always been the right answer. I am surprised that this does not seem obvious to everyone.
I'm sure the standard usage is only about job-related hardware and accounts, but if my employer's product was my source for personal driving directions, email, and web searches, I'd want a contract that didn't transform those into employment-related activities.
Not only it protects them, it enforces the work/personal hardware separation for me, which is good. My work hardware (which is pretty much a laptop and a phone) has no traces of my personal stuff and my personal has no traces of my work stuff and can't even it I wanted it to.
I genuinely don't understand the mixing of personal and work environments. Why would anyone possibly be interested in carrying their work phones with them after their done with work?
Convenience. I access my work calendar from my personal phone so I can check my calendar first thing in the morning. And avoid carrying/caring for a company-issued phone.
Meeting with Indian teams are rare, but when they happen, I have to be at the office an hour or two before normal. I'm always awake in time to get in, but generally have a relaxed morning - long dog walk, cooked breakfast, walk to work. If I have a 7am meeting, I have to grab a muffin and drive to work.
My best guess is that it has something to do with the permissions you give Google if you add a work profile/account to your phone. But that isn't required.
I'm all for balancing the employer<->employee interaction, but is this truly something that works for most industries? Google cares about it's reputation among potential tech employees. Other areas (say, Amazon warehouses) probably have a lot less trouble finding people desperate for work and willing to put up with crap because they need the jobs.
As good as this news is, is this really a template that we can expect much to build from? (as opposed to organized unions with legally protected ability to strike, for example)
In Google one could work to make 2x to 3x more than the next person - is that will possible with a union?
Seems like in jobs where individual talent / skills matter, a union is by definition harmful (unless you’re in the lower 50%).
Collective action / protest works fine, though, for establishing baselines. If giving employees what they want is cheaper than firing all of them and hiring a fresh batch, it should always work fine.
Professional athlete unions would be a counterexample, I believe. It really depends on how the union is structured. I doubt a union for high paid tech workers would be structured the same way as one for blue collar labourers.
Personally I find us far more alike other industries than unlike.
We're a new industry but we're still full of people of all types sizes and emotional colours.
A lot of people only associate unions with factory workers kind of jobs, it’s not. Think of journalists or performing actors unions for instance.
I wouldn't be surprised to see similar clauses in other union constitutions for fields in which, like tech, there's a large and obvious talent dispersion. I think a majority-rule approach would inevitably lead to the anti-meritocratic policies you're imagining.
It's the same idea. Workers doing things collectively.
There's no shortage of companies with various abusive practices that remain in business. Arbitration agreements, micro-management, strict controls over things as simple as bathroom breaks, even riding the line on wage-theft. I'm very glad to see this particular change, but to say "Google's programmers demanded change and got it, why don't you get with it, un-unionized cashiers at S-Mart!" overestimates the influence of those workers.
(of course one instance is too small of a sample size to support either direction on its own)
Both of these directly impact the bottom line and in competitive markets can and has killed companies.
The goods news is Amazon’s pay raise has made Walmart and Target increase their minimum wages as well.
> now if they would drop the overly
> expansive ownership claim in their
> employment agreement
I think part of the problem is that we non-organized workers (i.e. most tech workers and our similar peers) have accepted the unfortunate media-fueled trope that collective worker action equates to organized-crime connected unions like those of the Hoffa-period Teamsters.
Unfortunately, many white collar workers also don't want to be associated with the image of people in hard hats, even though their power relationship with their employers is not that different from those of blue collar workers. Acknowledging this would mean acknowledging the existence structural impediments to their career advancement that make the chances of their entering the C-suite very low, and that's a bitter pill to swallow.
The vast majority of worker unions (nurses, teachers, international brotherhood of X, etc, etc) are completely above-board organizations.
Also, this outcome demonstrates that there are many forms of collective action that are not full unions. The degree of organization needed depends on the circumstances (The early strong manufacturing labor unions emerged partially as a result of violent repression of worker protests by companies).
One could even argue that the anti-poaching class-action lawsuit against large SV companies many years ago was itself a form of collective action.
Not as much as you might think. Militant labor unions are still extremely beneficial despite the lack of Pinkerton assassins. The hardest part in organizing is going from 0 to 1. Once you've gotten to the point of collective action, the idea that you don't then go on to form a union is as wild as a startup building an MVP, getting funding, and then just disbanding.
Interestingly, even Google retains Pinkerton to investigate internal leaks .
My point here is that unions have done plenty to make a bad name for themselves, blaming everything on the media is simplistic.
Had I not experienced it directly (multiple times!), I would 100% think it was hyperbole.
My first 'real' job was flying around and recording conferences for a little shop. Chicago and Philly were by far the worst places to work. I was literally not allowed to plug my little hand held recorder into the wall without paying for a qualified union electrician to come in and oversee me.
Ignoring the over absurdity of it, on a personal level, how is it not completely embarrassing and demeaning for the electrician that gets called in? Is watching somebody plug in a cell phone charger fulfilling? I mean, I guess getting paid is getting paid, but damn, it just felt Kafkaesque every time. You take someone with talent and an actually useful trade, and then you make them watch other people plug things into wall sockets.
Its more the rip off prices for lighting and network service that piss me off
Plus, if you read more than one sentence of the parent post, you'll see it blames than just the media.
0 - https://en.wikipedia.org/wiki/Windy_City_(nickname)#Politics
A few days after Kent State a group of construction workers head into a protest against Vietnam and pretty viciously attack a crowd of 1000 college students. There is plenty of blame to go around for this event (like any occurrence of mob action) and many sociological trends that led to this, but historians tend to mark this event as the “beginning of the end” for Union influence in the US.
Collective action is the only way to improve working conditions and dissuade abusive employer practices.
There are many great engineers that I know who would have been barred from the industry, if we had anything at all similar to the barriers to entry in the medical or "real" engineering industries.
It is because of this that if there is ever a software union, I am going choose "defect" every single time.
I am not going to let these new-comers, that I know, be barred from the amazing jobs in tech, just because they didn't get a degree or pass a test or whatever.
Software bugs kill people. Not all software bugs, and not all software, but the lines are getting blurrier. It's not just medical equipment. Phones explode. A connected coffeepot could burn a house down.
The Toyota acceleration bug (where cars would accelerate uncontrollably) was preventable if industry standards were followed. These aren't things you'll find in a Martin Fowler book, there are specific best practices for reliable embedded systems.
Something needs to improve on this front.
That is a small amount of people though. The vast majority of people are not working on anything at all to do with self driving cars or medical equipment or space X.
Instead, what I care about preventing, and will fight extremely hard to stop, is barriers to entry for the most common software out there.
This most common job being the web developer.
We do. It need Industry standards in order to stop people from making website or apps. If a button doesn't work, in some dumb app, it does not matter. At all.
You might come up with some weird edge case, but we both know that whatever example you come up with is going to be the exception, and not the rule.
The reality is that for the vast majority of software engineering jobs out there, the stakes and consequence of failure are very low.
In America nobody cares about that. This isn't going to effect any of the major companies that matter, and is already causing companies to merely stop doing business in countries that have bad laws like this.
But also, I don't care. I will defect and fight every step of the way any of your efforts to keep out people from non-traditional backgrounds. (regardless of whatever misguided reasons you have to keeping people from non-traditional backgrounds out of the industry)
Your only options are to try to make some sort of law, which is extremely unlikely to happen in the US, or form some sort of union. And I will defect that union hard. Along with a whole lot of other people who do not want to see this industry destroyed. We will defect and sabotage any attempts to do this any way.
Fortunately for me, though, the anti barriers to entry side of the debate and anti union side of the debate is currently massively winning, and the people who are trying to throw up barriers to entry are losing.
All I have to do stop by the nearest tech bootcamp to see just how much the pro barriers to entry side of the debate has lost this war. And those barriers to entry are only continuing to be lowered.
It has never been easier to become a professional programmer. And it is only getting easier.
Yes, there are still barriers to entry. But the barriers to entry have been massively reduced over the last 10 years. Going to a bootcamp, and getting a job within a couple months used to be unheard of.
Your opinions on what a union "could" be are vastly different than the opinions of what other people want. This whole thread is me responding to a person who literally wants to raise the barrier to entry to tech.
Credentialism is very much being advocated for, by many pro-union/pro-guild people. And history has shown that whenever a union, in every single industry in the world, gets enacted, the result is higher barriers to entry.
Go look at the American Medical Association. Go look at the American Bar Association. Go look at the actor's guild. Screen writers guild. Whatever. It doesn't matter. Pick any high skilled labor union/guild and you will see an organization that is creating barriers left and right, and making it harder for people to get into the industry.
Yes, the current tech industry could be better. But the pro-union people are the ones who are most advocating in favor of keeping out competition/newbies/immigrants, you name it.
That's not how GDPR works. Any EU citizen, regardless of residence is covered. There's no real way around it.
The way of "getting around it" is to block all traffic coming from certain countries.
Sure, they might sue you anyway, but just imagine how many tens of billions of dollars in damages would be caused to European countries if Google or Facebook started blocking all traffic going into and out of these countries.
There would be huge negative political consequences, that the citizens of these countries would not stand for.
Also, it doesn't matter if they sue you, if your company is entirely based in the US. american companies don't worry that it is illegal to be gay in Saudi Arabia, so I see little reason why they would worry about bad laws in Europe.
But anyway this is completely irrelevant to the topic of conversation, which is barriers to entry in the tech industry.
And in order to fight these barriers to entry, I will defect, and sabotage any unions that try to do this, at every step of the way.
Reality is, most customers do not want to pay the price for extra security, other than the CYA (Cover Your Ass) kind and it shows.
And kudos to Google for doing the right thing.
You'll get them regardless.
I'm not sure that it's reasonable to bucket the bargaining position of all white-collar workers together. The negotiating strength of an employee is strongly tied to the supply and demand of other workers with a similar skillset, which varies widely within "white collar" industries.
> Acknowledging this would mean acknowledging the existence structural impediments to their career advancement that make the chances of their entering the C-suite very low, and that's a bitter pill to swallow.
No amount of collective action is going to significantly increase an individual worker's chance of making it into the C-suite. It's a simple question of numbers.
This is why we need unions, period.
edit: It’s always amusing to see HN readers start pant-shitting whenever someone posts a comment in support of unions. :)
(I meant "we" as in "our society".)
You're effectively agreeing to renounce to your rights to sue a company. Seems odd that US laws allows that.
Or, is the clause only that arbitration has to be attempted but not binding to the fact that an agreement may be reached?
This case would seem far less evil.
This is obviously problematic in cases where there is a significant power discrepancy (employee-employer, producer-consumer etc), or where arbitrators are paid by a single party. Despite this, US suspreme court has held that they are still valid 
When I think of the word "contract" I don't picture two companies with a meeting of the minds, on equal footing, settling something. Instead I associate the word with a hammer that a powerful company uses to smash a relatively powerless individual--because that's the only kind of contract 99% of us will ever be party to.
The problem is the disparity between the parties involved when it's a company and an individual.
Forced arbitration also bans class action lawsuits, which weakens individuals even further.
I think those conditions would effectively exclude it from consumer contracts while permitting it when both parties understand and want it.
That’s really the crux of it, isn’t it? In general it is entirely common in a contract situation for one party to care so much about a particular provision that it would rather not contract at all than contract without that provision. Generally the better the best alternative to a negotiatied agreement (BANTA) for a party the more likely it is to be willing to walk away over a particular provision.
I think the root of the perceived unfairness here is that people think a take it or leave it attitude is not fair. In a Dunbar size world, maybe it isn’t. But you can’t run a company with 100k individually negotiatied employment contracts.
I think the root of the perceived unfairness is that forced arbitration concerns using a power disparity to force renunciation by default of fundamental political rights (access to the court system) to the benefit of the powerful party.
The take it or leave it attitude is fine, but only when the parties are on fairly equal footing.
Instead the crux then seems to be "fundamental political rights". I guess I don't see it that way. When you go into court to sue the government, or even in tort against a private party, sure. But in a contractual relationship the right and reason to go to court flows directly from the contract. The fundamental right here is the parties' ability to form an enforceable agreement under terms they agree to. (I should note as a matter of rhetorical fairness that the New Deal Court discarded the notion of "liberty of contract", but as a political philosophy matter I still think it is crystallizes an important notion of freedom.)
I didn't specific it earlier, but I think restrictions on binding arbitration would also extend to contractural prohibitions on class action lawsuits, since the two typically go hand in hand.
It doesn't eliminate the power disparity, but eliminates new mechanisms that are used to increase it as well as protecting the mechanisms that have traditionally been used to protect against it.
> The fundamental right here is the parties' ability to form an enforceable agreement under terms they agree to.
I disagree, there are other rights that are at least as important that must be balanced against that.
Also "terms they agree to" is a slippery concept, and it's arguable it doesn't apply to 99% of the contracts "agreed to" today (think click-throughs and other walls of tiny text, which are typically neither actively negotiated, read, nor fully understood by one party as an essential matter of practicality).
So, like, if you couldn’t have over 2 + 4*log_2(your number of employees) cases where people you either currently employ, or used to employ and are still bound by that clause of their employment contract, are subject to forced arbitration.
(Or some other function. Sqrt might be better than log)
This would still provide some of (hopefully most of) the benefit of having the arbitration, while preventing it from being common or typical amongst the employees, as the proportion of employees would have to be asymptotically zero as number of employees increases.
That may have the unintended side effect of employers including _even more_ onerous impositions which they anticipate will be negotiated away, making the negotiation "active" as far as the parties are concerned but with the same outcome.
If it were entirely optional, what employee _would_ opt in to forced arbitration?
Thinking more about it, I would imagine employers would offer small incentives in exchange for the forced arbitration clause (like more paid time off, etc) but at least in that case it would be a trade-off made by the employee.
For me this is the biggest key issue, because it's an attempt to nullify the higher-level mechanism which ought to be preventing abuse.
We're getting there: https://www.fisherphillips.com/resources-alerts-kentucky-bec...
States still hold a lot of chips when it comes to rulemaking over what is and isn't allowed w/rt employment types and agreements. It's a bit murky though, when it comes to Federal power weighing in on employment contracts at the state level (outside of things you've come to expect like protected classes/EEOC, workplace safety, and accomodations/accessibility for workers with physical impairments).
Forced arbitration is a very good thing for the employers. It's not a good thing for the employees, who are effectively signing away a huge swath of rights.
But as I say elsewhere, this doesn't necessarily apply to employer/employee contracts where one side might not even have read the full contract, much less have been able to negotiate its clauses.
If the courts are also fair then there's no threat involved. Plus, what to do if the arbiter isn't fair?
In practice, this isn't how life works, but that's the theoretical reason. The real reason is that pro-corporate politicians hold power and corporations want arbitration agreements to be legal, largely because courts are more expensive, bad PR, and are less likely to work out in their favor.
You are agreeing. As an adult, the choice to agree or not agree to conditions of a private transaction seem to be a fundamental liberty. If people didn’t agree and it affected recruitment, then companies would respond accordingly. Also, without arbitration, conceivably that could result in a lower offered salary to offset the risk of litigation. Given that the vast majority of employees never care about suing, the higher salary is a better outcome most of the time. Banning forced arbitration is necessarily going to increase employee costs to a company, which means less money to pay people much in the same way higher health costs affect salaries as well. I don’t agree with forced arbitration, but making it illegal disrupts the freedom of employees and employers to engage in agreements how they see fit. Without arbitration, you get a lower salary, all else being equal, which is essentially a form of insurance against the possibility that you might sue. Some people might be ok with that, but that choice should be between the employee and the employer; it isn’t government’s place to get involved.
1. There's already plenty of stuff you're not allowed to sign away, no matter how much more "free" being able to do so might make you. I certainly bristle daily at how un-free I am not being able to sign myself into slavery.
2. OK fine. So we ban corporations from entering into forced arbitration contracts with individuals. You still can. With your neighbor or whoever. You can try with a corporation, but will find that they aren't permitted to. Since we collectively via the power of government conjure corporations from the aether, eff 'em.
Even if you willingly accept the forced arbitration clause you still may not get justice because the company doesn't want to pay for it!
A fundamental liberty that eventually leads to all corporations offering you the same choice. Accept it, or go bankrupt and homeless. Or were you able to negotiate terms with you bank, ISP, smartphone vendor, or Microsoft if you're on windows?
Laws restricting which contracts are legal, are just a form of collective bargaining of the voters. Or if you prefer, laws specifying which contracts will be enforced by the State. You're free to try and enforce the rest on your own, like a true libertarian.
The US government was "of the people, by the people, and for the people." Now it is of/by/for big corporations.
Forced arbitration is a whole-scale privatization of the justice system. Americans are actively being deprived of their right to justice, see: https://www.nytimes.com/2015/11/02/business/dealbook/in-arbi...
Lets say you are a stanch Democrat, a Republican candidate runs with Republican policies plus a plan to end forced arbitration. Do you vote for him? For most voters the answer appears to be no.
Small government conservatives vote for large government projects that benefit their donors and friends, on the other side a lot of talk about the minimum wage and socialized healthcare but none if it ever materializes when they have a majority. Then the next election comes and you vote for the same people who failed you the first time, because the other people are trying to kill toddlers and force schoolchildren to become transgender or are all secretly racists out to build death camps for gay people or some other insane claim fed to you by a corporate news network or comedy show that happens to be owned by someone who benefits from the status quo. Don't worry though, keep drinking Pepsi, you are part of the resistance TM brought to you by Viacom.
Why doesn't anything ever get fixed? We keep putting the people who failed back in charge. Nobody in Congress today should have a seat in the next election until something actually changes.
The only fair fight is if you have a competent union. That comes with its own problems.
Edit: if there is a difference, that is. If there isn’t, then nvm.
Honestly, I am having my suspicions whether or not that "low key" aspect isn't artificially maintained by the media somewhow. I had heard about the scandals and such last year, but somehow I missed:
> Following the massive, 20,000-person walkout at Google in November, Google got rid of forced arbitration for sexual harassment and sexual assault claims, offering more transparency around those investigations and more.
And I would say that 20,000 people walking out on Google should have been hard to miss.
For example, you mention sexual harassment; the victim (and certainly the accused) might not want all those details in the public record.
Corporations often insist on adding it to their employment contracts and employees almost never insist it be added to an employment contract that was missing it, so you can guess who it benefits.
Advantages are speed, privacy and cost. You also avoid the political risk of the court district that you are in.
In an individual vs company situation, it’s always better for the employer, unless the employee can hire the arbitrator. If the company hires the person, that arbitrator may find it difficult to get future work if they side with the company.
Without that, it's all on the company.
When employment contracts including a binding arbitration clause, the employee is agreeing to resolve conflicts privately with the company rather than through public means, such as a lawsuit. This reduces the public profile and resolution of such an action.
Plus, private arbitration is private. The terrible things the companies do to employees don't end up on public records. You can't even tell how often they are being taken to inverse kangaroo court.
It's saying Google is removing forced arbitration from its employment contract.