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Letters
Mandatory arbitration is a blow to rights
The U.S. Supreme Court's recent 5-4 decision to deny employees the Constitutional right to trial by jury in a dispute with an employer strikes another huge blow to the common person.
Employers insert mandatory arbitration clauses into employment agreements solely to protect themselves from the people. The jury, which is the purest form of democracy, is made of people randomly chosen from the community to decide what conduct will be tolerated in society and what will not. In making their decision, the jury is constrained by the bounds of the law. If a judge or jury fails to properly apply the law, or engages in misconduct, a party may appeal the decision to an impartial court.
An arbitrator, on the other hand, is one person who is free to ignore the law in making his or her decisions. There are no mandated regulatory, ethical or educational laws governing an arbitrator. Anyone can declare himself or herself an arbitrator. Arbitrators are not required to have special knowledge of the law or expertise in a particular subject area. The decisions may be arbitrary and there is seldom any relief from an arbitrator's misconduct. An arbitrator's decision can rarely be appealed.
Sophisticated corporations know who the favorable arbitrators are and they only agree to arbitrators who have rendered decisions in their favor in the past. Those arbitrators are not truly impartial, as they are rewarded with repeat business from these higher volume users of their services. This problem is aggravated by the fact that arbitration hearings and decisions are typically secret. This system allows wrongdoers to hide information from public inspection. While this may suit employers just fine, it is bad public policy. The public is entitled to know when employers abuse their employees.
Arbitration has been falsely billed as an inexpensive method of resolving disputes. To the contrary, it is typically quite expensive. Arbitrators commonly charge from $200 to more than $600 an hour and the cost of the arbitrator is typically shared by both sides. Many employees have been forced to bear abuse without remedy because they could not afford to pay for the arbitration which was their only forum to resolve their claims.
Finally, employers have no obligation to explain this dismal system to employees and to give them an option to preserve their constitutional right to a jury trial if they desire. While employers may not retaliate against employees or prospective employees for refusing to sign a mandatory arbitration agreement, in reality, most employees will not raise the issue for fear of being considered a "problem," thereby risking their careers. When an employer demands an employment arbitration agreement, it plans to take advantage of its economic muscle at the expense of your rights.
We all hope, we will never need to make any claims against our employers. Should the unexpected occur, however, we need to have a fair and impartial forum to resolve our disputes.
Robert H. Bohn Jr.
Los Gatos
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Saratoga, California Since 1955
