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Google Ends Forced Arbitration for Employees (techcrunch.com)
652 points by mayneack on Feb 21, 2019 | hide | past | favorite | 278 comments

Wow, you mean collective employee action can be used to force an employer to stop exploitative behaviors? Who knew? :-)

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.

> overly expansive ownership claim

If any Google employees in California are potentially interested in doing something about this, contact me at mjg59@srcf.ucam.org.

(Google employee, not involved in anything to do with employment contracts)

>> overly expansive ownership claim

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 would not sign something like that contract today.

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.

An acquaintance of mine who was given an offer by Google, and arrived on the appointed day, brought the agreement, a red line, and a clean copy. They refused to make any change in their wording even though they said their intent was not to enforce the wording as written. They said that they couldn't sign it unless Google's intent was actually in the writing as well. That afternoon, Google asked for all the gear they had been issued back and rescinded their offer of employment.

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.

Google will flat out refuse. In their view they own the entirety of your intellectual output for the duration, whether or not it's done on your own time and resources, and whether or not it's in any way related to your day job.

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.

> Google will flat out refuse.

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.

Google can be fun if you make it a point to work on stuff that actually matters and not just rest and vest. But I do wish they'd reconsider their abusive IP clauses. Which they won't until they begin to struggle with hiring good people.

> Google will flat out refuse.

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 doubt that non related work would actually be enforceable

Are you a lawyer?

Some states have laws that prohibit employers from claiming ownership over what the employee does with their own time as long as it is unrelated to the work of the business... but not much is unrelated to Google.

Doesn't California law protect people from employers stealing code you write on your own time?

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.

This is the relevant California law: https://leginfo.legislature.ca.gov/faces/codes_displaySectio...

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.

The clause in CA 2870(a)(1), "relate ... to the employer’s business," gives an exception to the protection when it's related to the Company's business. The problem is Google is doing so many things that some area will overlap with your idea ever if you were not directly working on it in Google, and Google can go after that.

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 agreed to that contract and open sourced many thousands of lines of code owned by Google, but still available to me and the rest of the world via github. I don't see the problem. If you could demonstrate your project didn't overlap google business then you could do your own project.

That's not really correct.

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.

Note that the OSPO policies have largely changed since you've left Google. What you describe was definitely the situation as of 3-4 years ago, but don't describe how open sourcing code or contributing to FOSS projects works these days.

People seem to not quite get this, so I'll try to be as clear as I can.

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.

The key point is "if you can demonstrate that your project doesn't compete with Google's business" IARC is really easy. I was approved for a couple projects, including one that absolutely could be considered to be competing with Google's business if they wanted, in like a week.

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.

If it's not enforceable, why is it in the contract? They obviously intend to try to enforce it in cases where they can, which makes claims about "don't worry about it, its not enforceable" even more shady.

I take issue with the very idea that anything I do in my personal, uncompensated time is required to be vetted or approved by anybody. Google's "earned" a swift kick in the rear in this context.

You might "think" but that's how Anglo Saxon employment law (UK USA Some Commonwealth countries) works.

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.

There were hundreds of years of "case law" on not letting black people drink from the same water fountains as white people. And yet, here we are.

What is "company time" for a salaried employee that doesn't have required working hours?

Come on, then it's a straight down slope to the company owns all intelectual output. Write a sonnet for a lover ? Bam, it owns it.

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.

That would not be related :_) - though the court case would be awesome.

It's the time spent working for the company.

Imagine if Google Reader or Wave had been your personal side project and one day it just happened to catch the eye of the wrong businessperson

> This means the person wrote this code on their own time

What is “your own time” as a salaried employee payed for work product not hours on the job site?

That would be the time when I am not doing company work.

But that is absolutely useless rule to use when the whole point of determining if work is done on your own time is to determine if the work done is legally your work or company work, since it becomes a circular argument.

You don't understand. Google claims ownership even on the stuff that you do on _your own_ time, like nights and weekends, without using _any_ Google resources. Even if this stuff is in no way related to what you do at work.

Disclaimer, I'm not a lawyer, this isn't legal advice. I've dealt with this part of the code as both an employee and an employer.

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 ...[1]

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.

[1] https://leginfo.legislature.ca.gov/faces/codes_displaySectio...

There is an argument (and 'dragonwriter, if I have the measure of him, is illustrating it rather than advocating it) that a salaried employee has no "own time" except insofar as their time is not required by the employer.

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.

Well, I'm somewhere in between illustrating and advocating (EDIT: “advocating” here as “advocating as legally true” rather than “advocating as desirable”); I'm generally dubious that there is a meaningful legally cognizable boundary of “own time vs. work time” as opposed to “own activity vs. work activity” for salaried employees paid for work product, as opposed to employees paid for hours of work. If you are working on something within the scope of what you are contracted to do for your employer, it would seem to be, ipso facto, work time.

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.

Sure, and employers actively (and probably to our, as workers, detriment) cause that conflation to make it harder to understand what that worker is allowed to do with their lives.

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.

Your description of how intellectual property works is untrue.

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.

> You don't understand.

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 of the employer designating those days as non-work days?

>> On what basis

On the basis that the contract says "40 hours a week". I don't owe the employer jack beyond that.

> On the basis that the contract says "40 hours a week".

It's extremely rare for salaried worker contracts to say that.

Most in the UK do, albeit normally with a caveat about exceptional situations.

Not for salaried they don't its no fixed hours of work - some employee handbooks will have core hours and a suggested average per week.

It's the norm almost everywhere in the world.

> "happens to be owned by Google" disclaimers on open source projects

Not sure I've seen this before, do you have examples?

Don't have one on hand but I have seen quite a few. I have heard that they are mostly 20% time projects though I'm not sure if they try to take code written on your own time but it looks like they do (and anything else you have written before working there) from this:


> As part of your employment agreement, Google most likely owns intellectual property (IP) you create while at the company. Because Google’s business interests are so wide and varied, this likely applies to any personal project you have. That includes new development on personal projects you created prior to employment at Google.

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.

Perkeep is written/founded by Brad Fitzpatrick (google/golang engineer) and you have to sign a google CLA to contribute to it: https://perkeep.org/code#contributing

> the right to surveillance on personal property

Wait, what? I don't think I've seen that before, what does this mean exactly?

I work in Google as well, and I simply don't check my personal Gmail from work machines. They can monitor my work laptop as much as they want.

This is coming from a firefox-using privacy paranoid Googler.

I have no idea what this guy is talking about.

It’s not just the programming companies that have clauses or practices about stuff like that, many companies in different industries do too.

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.

It does not seem to make sense. Google has access to each and any Gmail account, and it does not matter whether you login in from your home machine, or do this at work (on Google's premises).

You're privacy paranoid but work at Google?

Keep your friends close...

Hopefully they are working on the security team :-)

Well, I can't quote my copy as I'm under NDA from sharing it, however if you have a copy that you signed then carefully read the section about "equipment that you use to access your google work account".

Isn't there something similar in all Terms when loading something like Outlook Exchange etc. onto your personal phone with your work email? You basically sign over all privacy and content for them to do as they please with no granularity.

An NDA on the contract itself? Sounds shady as hell.

Pretty common in general. I recently saw a lawyer provide a template independent contractor agreement which had such a provision in the boilerplate, entirely unrelated to Google or any other huge company.

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.)

> 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 can't seriously expect their standard form agreement to stay NDA-confidential

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.

> 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.

So to make it harder for labor to organize, basically.

More or less, yeah.

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.

> Pretty common in general.

Even more worrisome.

You mean the companies equipment - that's fairly normal I have worked for companies that recognised unions in the UK and that clause never raised any issues.

There where agreements about what sort of offence justified monitoring at work it had to be a serious offence for example.

Not sure why you had a down vote, but to be clear the contract I have makes no limitation on who "owns" the equipment. Nor does it limit how such verification might be done. And since, at the time, all Google employee services could be accessed through a browser to employee specific URLs, it could be pretty much anything.

I feel like the corollary to this is that you're strongly encouraged to not access work stuff from a non Corp device.

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.

(Disclaimer: Googler here)

+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.

We are not supplied with a corp phone, they're only for people with a 'business need.' Been @ Google 7 years and never had one given to me other than holiday gift phones.

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're using your personal phone to check work email, that strongly implies a business need. Basically all my coworkers have corp phones.

No one is going to give you anything. Have you ever asked your manager?

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.

You have to ask for it, it won't just be given to you, but I think you're making assumptions about the answer if you asked for it.

Tell your manager you wont check any work stuff on your personal devices anymore, because your worried about security, etc. The problem will either be resolved fairly quickly, or you will have better work life balance.

I never had a corp phone at Google and was never offered one. As far as I know they weren't available to me. It wasn't usually a problem but there were definitely cases where if I had a corp phone it would've made things easier - not like I was going to sync my personal phone up to corp and get it remote wiped.

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.

Couldn't you just buy the card yourself on amazon or whatever and expense it?

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.

If corp purchasing is interfering with your ability to do your work, that's the corp's problem, not yours. If you choose to make it your problem and choose to solve that problem by using your own hardware, well, you made that choice.

It's "fairly normal" in UK perhaps and very illegal in many other countries.

So you're saying they use the Android app permissions model?

When they wrote mine the Android app permissions model didn't exist :-).

Yeah, this is real.

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.

This all sounds completely normal. Do people actually imagine that the hardware they use at work is somehow theirs, and not their employer's?

"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.

"used to conduct the business of the company" is not the same as "employer's hardware".

That's the employee's choice, though. I log in to my @google.com account with my personal phone, but I don't have to. If I'd rather keep personal and work totally separate, I can request a Google-issued phone to carry alongside my personal one. I have teammates who do this.

I agree that this doesn't seem odd in general. After the recent Facebook security team news, though, I'd want to be very careful about the exact definition of 'company systems' at Google.

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.

I fail to see the issue. Hell my company went further: only their registered devices can even login to access company emails (including via web!) and other services.

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?

I genuinely don't understand the mixing of personal and work environments.

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.

I had a contract with something like that in it. I told him "this says you can spy on my computer" and he was quite surprised. He had received the document from a lawyer and truly had no idea it was in there. So when I told him we had to remove the section there was no problem.

I had the exact same reaction. Shouldn't this worry the employees the most?

I work at Google and have absolutely no clue what he's referring to.

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.

Also for Android users the exact point of work profile is that the surveillance is limited to only the work profile portion of your phone.

You can imagine different tiers of security, where a work profile gives you minimal access to corp while a fully managed setup gives you more substantive access to corp resources and allows a company to enforce more security and visibility into the client device.

Yes, but at circa 2016 you cannot get higher tier of security on your personal device. You have to use a Google issued phone to get that.

On iPhones it just allows them to wipe your phone if it's lost.

That makes a lot of sense, and a legitimately personal decision. Some people don't want to share root access on the personal phone with their employer. Other people don't want to carry a separate phone for work.

> collective employee action can be used to force an employer to stop exploitative behaviors?

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)

Unions and their actions are collective employee action, I'm not sure what you're saying won't work?

I'm not saying unions won't work...I'm saying they weren't involved in this case. This case doesn't look particularly repeatable WITHOUT unions.

I think that was the point. The original parent was making a tongue-in-cheek reference to how tech workers seem to resist the idea of forming a union, but occasionally band together to do union-like things informally, in an ad-hoc, not-particularly-reliable fashion.

I read it as "see, didn't require forming a union to get something done in the tech industry"

Do unions allow competition among union members? It’s always seemed to me that they work in jobs where the people are replaceable.

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.

> Seems like in jobs where individual talent / skills matter, a union is by definition harmful (unless you’re in the lower 50%).

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.

That is a pretty naive view of our industry.

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.

Nothing in the notion of union stops competition or talent/skill expression.

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.

Unions allow whatever they want to allow, and block whatever they want to block. So if Google employees wanted to form a very light touch union they could do exactly that.

I took a glance at the constitution of the Screen Actors Guild recently as part of a discussion on this topic elsewhere. It's interesting how it features very strong supermajority requirements for going on strike, for imposing a salary cap, and for amending the constitution to remove the supermajority condition.

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.

[1] https://www.sagaftra.org/files/2015_1002_sag-aftra_constitut...

It walks like a union, talks like a union, and quacks like a union.

It's the same idea. Workers doing things collectively.

Perhaps they can get the best of unions without getting the worst of unions with this behavior.

The worst of unions being?

Can you not think of any negative aspects of unions?

From what I recall unions were involved in this case. Organizers of the mass protests explicitly cited receiving the advisement of union activists.

Why doesn't it look repeatable?

Rephrasing from my original comment: Because Google worried about a very supply-limited audience (tech workers, including related non-programmers). Most fields, the ones paying their employees far less and with far fewer perks, don't share that restraint. If these other fields had their current crop of (non-unionized) workers get disgusted, the companies would just get different employees.

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.

So, would you say it is particularly repeatable in this industry? I.e. that while those other industries need unions due to lack of leverage, this one may be different?

(of course one instance is too small of a sample size to support either direction on its own)

I'm hardly qualified to have anything but the most grossly informed of opinions, but yeah, I'd expect that in the current environment most tech-area (i.e. Seattle, SF, etc) devs can and should demand improvements and be able to get them without requiring unions (which is not the same as saying unions aren't needed. Look to games dev for examples).

Reputation has a lot of hidden costs. Simply having a smaller pool of applicants means they need to either pay more or accept what they consider worse employees. Similarly, high turnover means the loss of skills and the inability to underpay highly valued workers.

Both of these directly impact the bottom line and in competitive markets can and has killed companies.

From what I understand, Amazon actually has trouble recruiting and retaining enough warehouse workers (especially during peak seasons). This is evident by them having a starting wage ($15/hr) that is more than double the minimum wage in many parts of the country

Glassdoor says the average was only $12 but in October they raised it to $15 minimum. Walmart’s low end is about $13 but the average is $17 an hour. Walmart has 1.5 million workers in the US, over 2 million worldwide.

The goods news is Amazon’s pay raise has made Walmart and Target increase their minimum wages as well.

Reminder that the Amazon pay raise occurred because Bernie Sanders shamed them into it. Disney as well.

And they lowered stock benefits a few weeks later

Average pay is a meaningless statistic unless combined with a number of other statistics. What would be interesting is knowing the mean pay.

Ummm... you probably meant "median". Note, "average" is just "arithmetic mean".

I guess we mean different things with "trouble".

   > now if they would drop the overly
   > expansive ownership claim in their
   > employment agreement 
California Labor Code §96(k)

> Wow, you mean collective employee action can be used to force an employer to stop exploitative behaviors? Who knew? :-)

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.

> The degree of organization needed depends on the circumstances

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.

Fun fact: Pinkerton is still around and is "the world's leading provider of corporate risk management solutions" [0]. Companies regularly hire Pinkerton muscle to handle "security threats" related to union organizing.

Interestingly, even Google retains Pinkerton to investigate internal leaks [1].

[0] https://www.pinkerton.com/

[1] https://newrepublic.com/article/147619/pinkertons-still-neve...

Still in existence, and willing to litigate about it's historical portrayal.


You’d think Pinkerton would have rebranded.

Perhaps it's still an effective brand in their target market?

This. Their customers are buying into the brand.

All you have to do is try to run a conference in Chicago to see how bad unions can make things though. Sorry, you can’t plug that in, only a card-carrying electrician is allowed to do that! And he’s on break.

My point here is that unions have done plenty to make a bad name for themselves, blaming everything on the media is simplistic.

>only a card-carrying electrician is allowed to do that!

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.

:-) wonder what would have happened if that happened when I worked at BT "sorry comrade, that is telecommunications equipment can I see your CWA card, oh and did I mention that I am branch secretary (president) of my branch.

Its more the rip off prices for lighting and network service that piss me off

You're talking about being "simplistic", yet you want to reduce all unions to one bad example (which seems to protect the members of the union) from a city nicknamed in part due to its overall political corruption[0]?

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

One event that really drove a wedge between hard hat ppl and white collar was this riot: https://en.wikipedia.org/wiki/Hard_Hat_Riot

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.

You ignore the non-union organizations that also protect their own. ABA, AMA, etc. control the supply of doctors/lawyers and accomplish the same end result as unions: higher wages and less competition.

Most unions and guilds do this. I don’t find it unreasonable, and would still sign on to a technology workers union, dues and all. Credentialing? I’d be okay with that, otherwise if everyone can “be an engineer” just by saying so, no one is (and credentialing would be superior to the white board gauntlet mess tech interviews currently are).

Collective action is the only way to improve working conditions and dissuade abusive employer practices.

With the current hiring process mess I'm a strong proponent of more universal credentials. I would happily pay and test through some licensing option once than invest similar time for some of the current interview processes at each company. My time is more important than playing continual ambiguious and inaccurate qualification games.

And this shows exactly why many oppose unions in the tech industry, despite the incredulity of union supporters: they make it easier to impose rules which many of us profoundly disagree with.

Those are more like guilds than unions.

What's the difference?

AIUI, unions represent employees, guilds represent independent members of a profession or vocation. Said another way, neither the AMA nor ABA negotiates compensation for their members.

"Presentation!" as Megamind would say. The only difference is the color of the collar (and a whiff of classism).

Historically that's what guilds did.

But that's horrible. I don't want to throw up barriers to entry, in order to keep out new comers.

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.

When it comes to development and security engineering a certain demonstrated base qualification might not be a bad thing. It's pretty unbelieveable how quality is handled in software engineering...

When I think about self driving cars I can't help but think about the Therac-25.

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.

If you want to say that people working in self driving cars should have to pass qualification tests or whatever, I don't care about that.

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.

Anyone handling PII is dealing with high stakes. That's not my opinion, that's the post GDPR world we live in. And that's pretty much everyone in the B2C space.

> that's the post GDPR world we live in.

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.

There have always been barriers to entry to be a programmer. For every self-taught coder, from both the pre-CS as a degree days to the modern day bootcamp devs, there several times as many employers who only want graduates from top-league schools or FAANG experience. Credentialism is not being advocated for by employees, but by employers. If anything, a union could be useful to combat restrictive hiring practices.

The tech world has changed a whole lot in the last 10 years. I know many people who got into the industry by merely going to a tech bootcamp, which got them into a junior engineering position.

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.

> stop doing business in countries that have bad laws like this

That's not how GDPR works. Any EU citizen, regardless of residence is covered. There's no real way around it.

Sure there is!

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.

Security is an economic choice of the producing firm for the most part, and there are plenty of certifications and degrees that employers can discriminate on but do not. They even might have the security training and still fuck up.

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.

There need be no credentialing or collusion or universal contract requirements or wage demands. Credentialing/licensing would be particularly ridiculous. A tiny organization with just a lawyer, phone and a website to share info would likely be completely adequate. After all, we are not a group as vulnerable to abuse as coal miners etc.

And kudos to Google for doing the right thing.

This is the thing. I'm never going to be stopped from working with a guy who wants me to work with him simply because some moron in an ivory tower thinks I don't have the credentials. This is good. I won't accept the alternative.

The way quality assurance works in software engineering is way below any other industry - so I wouldn't be surprised if at one point some base qualifications are needed, much like a doctor, architect, nurse or teacher...

Oh I'm of the opinion that it will happen. But I aim to delay it as long as possible until my career ends. After that y'all can turn into a super-IBM. Be my guest.

Imagine that sentence coming from a wannabe doctor or civil engineer.

I don't build things that will kill people if they're wrong. If I get this slightly wrong, the wrong people will be advertised the wrong car. The world won't end.

There's a new story about passwords getting hacked and leaked every month, if not every week. This industry needs stronger standards, and if the industry doesn't come up with it ourselves, the law will.

I don't hold people's data like that. I don't need your law. I don't need your regulation. Always with the slowing down of development. Ugh.

Don't complain to me, complain to all of the Facebooks that resell data to third parties, and all of the Googles who store that so that the NSA can tap into it, and all of the Equifaxes that leak all the data so the criminals can make use of it.

Doesn't matter that you don't want law or regulation.

You'll get them regardless.

> 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

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.

Also, tech workers willingly buy into a very harsh libertarian ideology. It is hard to accept that as an employee in a company, we are more likely the blue-collar Joe Six-Packs, not the John Galts.

>>Wow, you mean collective employee action can be used to force an employer to stop exploitative behaviors? Who knew? :-)

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. :)

But didn't they make this happen without a union?

Yes, but only because software engineers generally have more leverage than employees in other fields.

(I meant "we" as in "our society".)

So, do software engineers need unions?

In certain sub-fields, such as game development, they would absolutely benefit from being part of a union, yes.


Didn’t work for James Damore or Gudeman.

Why isn't forced arbitration illegal?

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.

Arbitration comes from agreements on how to settle future disputes being legal [1]. If two company agree to settle through a chess match between their CEOs instead of suing, by all means let them.

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 [2]

[1] https://en.wikipedia.org/wiki/Federal_Arbitration_Act [2] https://en.wikipedia.org/wiki/Epic_Systems_Corp._v._Lewis

I'd argue any contract is problematic if there is both a significant power discrepancy between the parties, and the terms are non-negotiable (take it or leave it).

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.

Technically verbal contracts, like when one pays someone to cut one’s hair, are contracts, I think?

Sure but let anyone do voluntary arbitration not forced.

If two companies of comparable size want to agree to arbitrate any disputes in a contact, that should be allowed. It saves massive amounts of time and money.

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 forced arbitration should only be legal in actively negotiated contracts (i.e. both parties were active in writing and modifying all the terms), where the proposing party disclosed the implications in plain language, and where agreeing to it was entirely optional for either party (sort of like GDPR consent).

I think those conditions would effectively exclude it from consumer contracts while permitting it when both parties understand and want it.

> and where agreeing to it was entirely optional for either party

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 here is that people think a take it or leave it attitude is not fair.

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.

The power disparity remains whether or not we restrict arbitration. If isn't take it or leave it on that, it'd be take it or leave it on salary or vacation days or whatever else. I don't see how tweaking one, in the grand scheme of things, small available contractual term is doing anything about power imbalances generally.

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.)

> The power disparity remains whether or not we restrict arbitration. If isn't take it or leave it on that, it'd be take it or leave it on salary or vacation days or whatever else. I don't see how tweaking one, in the grand scheme of things, small available contractual term is doing anything about power imbalances generally.

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).

Hm, What if entities were limited in how many active contracts they could have outstanding in which they had an obligatory arbitration clause in play, based on how many employees they had?

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.

> I think forced arbitration should only be legal in actively negotiated contracts (i.e. both parties were active in writing and modifying all the terms), where the proposing party disclosed the implications in plain language, and where agreeing to it was entirely optional for either party (sort of like GDPR consent).

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.

> Forced arbitration also bans class action lawsuits

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.

It’s voluntary whether or not to agree ahead of time to be bound by a conflict resolution method should such conflict arise in the future.

Why isn't forced arbitration illegal?

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).

I thought that SCOTUS already ruled that the federal arbitration act gives states little power in this?

Oh? You may be entirely right, if that's the case, this fact completely eluded me and I'll take the correction.

Averaged across distinct contracts (as opposed to contract-instances) forced arbitration is a very good thing. If Google and Microsoft get into a dispute about the meaning of some agreement they signed they it's far better that they get some third party to quickly resolve the issue than that they have to spend years and millions of dollars in legal fees fighting it out in the courts. It's only when these agreements are imposed rather than negotiated that they become abusive.

> Averaged across distinct contracts (as opposed to contract-instances) forced arbitration is a very good thing.

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.

Employers generally use the same contract for all their employees so employer/employee forced arbitration contracts are only a minority of contracts. If a contract is between two corporations each with their own lawyers to review the contract that giving up of their rights to sue each other is actually a good thing. But that depends on the arbitrator being acceptable to each and desiring repeat business from each. It's the employer/employee situation where only one side has lawyers involved in selecting the arbitrator that the situation becomes abusive.

The parent may agree with you, but they said that in a somewhat obscure way. I believe their point is that companies have many distinct contracts with other companies (good) that contain arbitration clauses, and that employers have a smaller number of distinct contracts with employees (bad) that are duplicated thousands of times over.

You mean arbitration is a good thing. Yes it is. Forced arbitration is taking away the option of going to court.

No, I do mean forced arbitration. If the arbiter would be fair then the ability to threaten to fall back on the court system could be used as a coercive threat. Provided both sides have input into how the contract is drafted the compulsory nature of the arbitration is good for both, in expectation, though obviously when a dispute is adjudicated against either suddenly they'd have an interest in overturning it.

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 arbiter would be fair then the ability to threaten to fall back on the court system could be used as a coercive threat.

If the courts are also fair then there's no threat involved. Plus, what to do if the arbiter isn't fair?

The Federal Arbitration Act, and a SCOTUS favorable to corporate interests.

The idealistic take is that the United States is a country that maximizes freedom, which includes the freedom to enter into whatever contracts you wish. You aren't forced to take a job that requires you to waive your right to sue; you're choosing to do it. If it were too important, capitalism suggests that another employer would show up, offer you a little less pay and no arbitration clause, and everybody would work for that company instead.

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.

>Why isn't forced arbitration illegal?

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...

> You're effectively agreeing..

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.

> 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.

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.

For another data point consider https://www.reuters.com/article/legal-us-otc-uber/forced-int...

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!

> the choice to agree or not agree to conditions of a private transaction seem to be a fundamental liberty.

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.

You could make the same argument for almost any regulation. And we'd all be worse for it.

Companies shouldn't be allowed to have you sign away your constitutional rights like this.

Mostly because people don't care enough.

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.

because we live in a dictatorship of capital

because of shitty court rulings that make them legal. They also can't be banned at the state level.

I would be perfectly fine with forced arbitration that was perfectly fair and not skewed towards the employer. The problem with forced arbitration is that it's completely skewed towards the employers. Being able to have a fairly arbitrated conflict that was inexpensive and had looser rules than a formal lawsuit would be a benefit to all. Look at how small claims court is so much more efficient and fair than a regular lawsuit.

I'd much rather expand the domain of small claims court, than create a parallel, privately-owned legal system. Even if it started out perfectly fair.

There’s no scenario where a legal proceeding between employee and a large company is fair. The main advantage of court is the ability to appeal and the public nature of the proceedings.

The only fair fight is if you have a competent union. That comes with its own problems.

What if, instead of aiming at “fair”, we instead aim at “Just”?

Edit: if there is a difference, that is. If there isn’t, then nvm.

Yes, at the heart of it, this is the problem. As an employee, an arbitration clause realistically means that the only recourse you have is through what amounts to a kangaroo court run for the benefit of the employer.

Sounds like a stunning victory for (unorganized) labor—almost too good to believe! Does anyone with more details know if there are caveats or exemptions (other than the mentioned contractors)?

I don't know the details, but I do believe that high-skilled labor like Google employees likely have more bargaining power than your local pizza delivery driver. It wouldn't surprise me if we see these kinds of victories in other tech companies.

If I were other companies, I'd be scrambling to prevent this from happening with my employees. Can't assume it'll spread without organized effort (hint, the U word).

These workers organized.

This has low key been a big year for labor in tech. First we have Amazon backing out of NYC partly due to political pressure from the unions and wins like this vs. Google. Full blown unionization may never happen but the forces of labor are definitely starting to affect tech giants.

I don't think the unions actually had much to do with Amazon pulling out. Some unions were actually for it either because they were involved in the construction plans or thought it would give them leverage if Amazon was more firmly rooted there.

The amazon thing was affected by unions the least, the lacking support from authorities and uncertainty about subsidies/grants was major reason.

> This has low key been a big year for labor in tech.

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.

Indeed, it was hard to miss. There was tons of coverage.

Someone please explain to me the benefits of having forced arbitration at all; what's the benefit of having disputes (including sexual harassment disputes) resolved behind closed doors without any possibility of appeal?

Much cheaper, faster, and more private for all parties, plus I believe it prevents class action lawsuits. And don't forget the possibility that the arbitrators (who are paid by the company) favor their benefactor…

For example, you mention sexual harassment; the victim (and certainly the accused) might not want all those details in the public record.

If it is such a huge benefit to everyone then both parties will simply always agree to it in the pre-lawsuit negotiation phase, and you don't need a preexisting agreement to mandate it.

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.

The thing is, if the employer and the employee both wanted arbitration, neither would need to be forced into it - something along the lines of "arbitration is always available as an option with consent of all parties" written into the contract would be perfectly fine.

It wouldn't even need to be in the contract would it? They'd just both agree at the time of the dispute.

Many union contracts call for arbitration. The advantages in that scenario is that it is faster and more definitive. Usually unions and management have some sort of process to pick the arbitrator in a manner deemed acceptable.

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.

The difference in that case if you have a union on your side to help ensure that you get a fair arbiter and a fair process.

Without that, it's all on the company.

If you’re suing an employer as an at-will employee without a contract, it’s pretty academic.

Not having forced arbitration doesn't mean you can't agree to arbitration voluntarily.

From the article: "Forced arbitration ensures workplace disputes are settled behind closed doors and without any right to an appeal. These types of agreements effectively prevent employees from suing companies."

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.

Employees only win 21% of the time. Almost half as often as federal courts and over half in state courts.


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.

Arbitration is also far cheaper than court. The average person filing a lawsuit is going to be much more confident than one going through arbitration, so of course, lawsuits end up being more successful.

I could be wrong but I understood one of the problems is misaligned incentives. If the arbitrator is to be kept in business then it's tough for them to rule against businesses that bring cases to them consistently even if the case merits it, which disadvantages employees. In reality I've heard it indeed doesn't turn out fair.

I believe arbitration is still optional. If you're an employee, there's no benefit whatsoever to forced arbitration.

Optional as long as you're ok not having a job. I have yet to sign a contract with any SV company that doesn't include forced arbitration.

...this is literally what the article is about.

It's saying Google is removing forced arbitration from its employment contract.

Yeah I get it. I was trying to explain it to the commenter that missed that detail.

His point is if it is such a net win for everyone, then you can simply agree to it at the time the lawsuit is being put together. The forced clause where you pre-agree to it is because they know it isn't always a benefit to both parties. Corporations often push for the forced clause and employees almost never do.

Seems like a clear benefit for the company if there's no backlash, right? Even if you expect the same outcomes, it's surely cheaper.

Imagine we have a civil dispute; you get your lawyer, I get my lawyer, we go to a judge, and the judge makes a decision. Forced arbitration is if instead when we had a civil dispute, we just went to my lawyer, and my lawyer made the decision.

Keeps the company's public image clean.

Forced arbitration overwhelmingly favors the employer.


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