The unfairness of forced arbitration clauses is well-known by trial attorneys and the people they represent. Whether it’s a dispute with a credit card company or a nursing home corporation, these businesses often force arbitration on their customers or employees. And if there’s a dispute, a mandatory binding arbitration clause often means getting justice is impossible.
Last evening on National Public Radio’s "All Things Considered," they spoke with Jamie Leigh Jones, who had a harrowing experience as a private contractor in Iraq when she was raped and beaten by her coworkers. When criminal charges could not be filed, she sought to hold her employer, KBR / Halliburton, accountable for their misconduct. But a forced arbitration clause buried in her employment agreement meant she could not have a jury trial. Instead, she would have to go to arbitration, on the corporation’s own terms, for a secret, one-sided tribunal. Jamie’s appellate counsel is John Vail of the Center for Constitutional Litigation, who is challenging the forced arbitration clause.
NPR makes the case for why Congress must act on this issue. Americans every day are unknowingly signing away their legal rights just by getting a job or signing up for what appears to be a standard consumer service.
Two bills in Congress will help fix this problem. The Arbitration Fairness Act will ban pre-dispute forced arbitration clauses, so arbitration is voluntary and not mandatory. The Fairness in Nursing Home Arbitration Act specifically addresses these clauses in nursing home contracts, which too often allow neglectful or abusive facilities to escape accountability.
And Americans overwhelmingly approve of these bills and are against the use of forced arbitration. Six in 10 likely voters support the Arbitration Fairness Act – including majorities of Democrats, Republicans and Independents. And 59 percent of likely voters oppose the use of mandatory binding arbitration clauses in employment and consumer contracts. Hopefully we’ll see Congressional action on these bills in the very near future.