In a series of speeches on the House floor last Thursday, a group of House Members led by Rep. Hank Johnson made a powerful and compelling case to end the insidious practice of pre-dispute forced arbitration. Attacking forced arbitration in all its forms, the Members explained how corporations use the practice to deceive individuals into giving up their legal rights and to escape accountability for breaking the law. They also highlighted the growing demand for change and various ongoing reform efforts, including new legislation and agency rulemaking. Read more
Today Senator Patrick Leahy of Vermont continued the fight against the pernicious practice of forced arbitration, introducing the Restoring Statutory Rights Act of 2016. The bill would ensure that big corporations can’t use insidious forced arbitration clauses to avoid liability for violating statutory and constitutional rights. If passed, the bill would be a victory not just for the individuals and small businesses who need access to fair courts to vindicate fundamental legal rights, but for democracy itself.
Below, read the full letter that AFJ sent to the Senate urging support for the bill. Read more
Last week, popular fantasy sports sites DraftKings and FanDuel made headlines for some unsportsman-like conduct. The companies are facing scrutiny over alleged false advertising and what amounts to insider trading, unseemly business practices that could affect millions of users nationwide. These allegations led to a class action suit filed last week in federal court, in which a potentially nationwide group of fantasy sports fans seek to recover money they lost because of these unfair and unlawful practices.
Earlier this week, the Department of Defense announced it will be expanding the Military Lending Act to cap interest rates and prohibit forced arbitration in credit cards, payday loans, vehicle title loans, refund anticipation loans, and other types of loans made to service members. A previous rule had been riddled with loopholes that allowed lenders to charge exorbitant fees and avoid the arbitration ban. The expansion is an important step toward protecting troops who are often targeted by predatory lenders before being deployed.
The news comes as the Consumer Financial Protection Bureau (CFPB) moves toward rulemaking of its own on forced arbitration. On Wednesday of last week, CFPB Director Richard Cordray confirmed the agency would soon be announcing a rule on the use of forced arbitration in financial products for all American consumers.
The decision follows two studies conducted by the agency that demonstrated the prevalence of forced arbitration and the harm it causes. Tens of millions of consumers use products under the CFPB’s jurisdiction that contain forced arbitration clauses. For some products, including payday loans and cell phones, nearly every contract signed by a consumer has an arbitration clause in it. Yet most consumers mistakenly believed they could still sue their employer in court or join others in such a suit. Once in arbitration, the report found that businesses won 93 percent of their claims and counterclaims.
Industry groups and congressional Republicans have already begun to fight back. An amendment to the Financial Services Appropriations Bill would require the CFPB to conduct yet another, duplicative study—at taxpayer expense—before beginning the rulemaking process. And in a transparent attempt to create further delay, the American Bankers Association, the Consumer Bankers Association, and The Financial Services Roundtable made similar demands in a recent letter to the CFPB.
Yet these efforts have not been enough to stall our momentum. The CFPB has confirmed its intention to initiate the rulemaking process despite industry objections, and for now the financial services bill has stalled on the House floor. More than three years after the CFPB began work on its arbitration study, meaningful change is finally on its way.
This month marks the five year anniversary of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which gives the CFPB its authority to ban forced arbitration clauses in the financial industry, and the four year anniversary of the CFPB itself. On these important birthdays, recent efforts to curtail forced arbitration provide reason to celebrate—but there is more work to be done. Industry opposition will continue. The rulemaking process, once underway, will be contentious. And AFJ will be there fighting every step of the way.
A recent article by Orange County Register Watchdog Columnist Teri Sforza explains some of the harm done to consumers and employees from forced arbitration, drawing in part on AFJ’s short documentary Lost in the Fine Print. The film details the story of Alan Carlson, the owner of Italian Colors restaurant in Oakland, California, who tried to challenge American Express’s high “swipe fees” in court. A forced arbitration clause buried in the fine print of American Express’s terms of service kept Alan from being able to vindicate his rights.
Marina Hoffmann Norville, a vice president at American Express, told the paper her company recently made changes to its forced arbitration policy to keep customers satisfied.
But how significant are the changes for consumers?
For the past decade, companies have been free to make claims about their arbitration policies with little factual support or scrutiny. There was no way to know what the typical arbitration process looked like, if customers were able to take advantage of seemingly consumer-friendly clauses, and whether consumers were actually winning cases in arbitration. But all that changed earlier this month, when the Consumer Financial Protection Bureau released its comprehensive, in-depth study of forced arbitration. Now, consumers are able to fact-check company claims.
So we decided to fact-check American Express. Is its arbitration clause as consumer-friendly as the company implies?
The answer is a resounding no.
American Express touts its new opt-out policy, which gives customers 45 days from when they first use a new card to opt out of the agreement’s arbitration provision. While “agreeing” to forced arbitration is as easy as swiping your Amex card, opting out is a bit more onerous. To even find the provision, customers have to get to one of the last pages of the cardmember agreement—just past the “governing law” and “assigning the agreement” sections. Customers then have to print, sign, and snail mail a rejection notice to a P.O. box in El Paso.
It’s unsurprising that consumers rarely take advantage of these opt-out provisions. According to the CFPB’s study, though over a quarter of credit card contracts include a similar provision, not a single consumer of the 570 interviewed had opted out. Only three consumers reported being given an opportunity to do so—but those three were mistaken. None of them actually had a contract which would have allowed them to opt out.
We did find one place where American Express is an industry leader: conducting forced arbitration in secret.
Only two credit card issuers of the 66 examined by the CFPB expressly includes a confidentiality or non-disclosure clause in its forced arbitration provision. American Express, which mandates that “[t]he arbitration will be confidential,” is presumably one of them. These clauses prevent wrongdoing from being exposed and remedied on a large scale. Consumer laws, which protect us all from fraud and discrimination, vindicate critically important societal goals. They should be enforced in the full sunlight of the courtroom—not in a private tribunal that American Express closes off to the public.
The rest of Amex’s arbitration clause is similarly unfriendly to consumers. The company provides a carve-out from forced arbitration for small claims court, as do 99 percent of credit card contracts. But like the opt-out clauses, these provisions rarely help consumers; they are more likely to be used by companies trying to collect debt. In 2012, looking at selected states and large cities, the CFPB was only able to identify—at most—39 small claims cases brought against American Express by a consumer.
Like 40.9 percent of credit card forced arbitration clauses, American Express’s includes a right to appeal an arbitrator’s decision—but only to three more arbitrators. The company is also unusual in that it “will consider in good faith making a temporary advance of your share of any arbitration fees.” Over 40 percent of credit card contracts require the issuer to do so.
If American Express truly wants a consumer-friendly arbitration policy, it should give its customers the right to choose whether or not they arbitrate—not in the form of an arcane opt-out policy, but after a dispute arises. If arbitration is as fair, quick, and affordable as proponents claim, it’s hard to imagine why customers would turn it down.
AFJ Justice Programs Director Michelle Schwartz testifies today at a public hearing in Newark, N.J. on forced arbitration. The hearing was called by the Consumer Financial Protection Bureau. CFPB released a study of forced arbitration today – and CFPB has the power to prohibit the practice. This is Schwartz’s testimony:
My name is Michelle Schwartz, and I am Director of Justice Programs at Alliance for Justice. I was born and raised in nearby Livingston, and I was Senator Lautenberg’s Deputy Chief of Staff, so I’m very happy to be with you here in Newark.
On behalf of Alliance for Justice’s more than 100 member organizations working for a fair and just society, thank you for conducting this comprehensive study of forced arbitration. The study confirms what we have long suspected—forced arbitration allows companies to evade accountability when they wrong consumers.
Alliance for Justice recently released a short documentary, Lost in the Fine Print, that demonstrates the harm forced arbitration causes for everyday Americans.
It tells the story of Debbie Brenner, who was cheated by a for-profit college that took her student loan money, but failed to live up to its promises of quality instruction and job placement. When Debbie and her fellow students tried to sue, they were forced into arbitration because of a clause in their enrollment form they never read and certainly didn’t understand. In fact, a recruiter for the college admitted even he didn’t understand what the clause meant. But that didn’t stop an arbitrator from deciding the case against the students—and ordering them to pay hundreds of thousands of dollars for the school’s legal fees.
Lost in the Fine Print also tells the story of Nicole Mitchell of West New York. Although Nicole’s case dealt with employment discrimination, her experience was instructive for all who face forced arbitration. The arbitration was conducted in secret, Nicole never even got to meet the arbitrator who decided her fate, and she can never appeal.
Debbie and Nicole were unusual in that they ever even went to an arbitrator. As your study shows, the vast majority of wronged consumers never make it that far. Often, that’s because the amount they could possibly recover for the real harm they’ve suffered pales in comparison to the cost of bringing an individual arbitration.
That was true for Alan Carlson, whose story we also tell in our film. Yet the Supreme Court upheld American Express’s forced arbitration clause when Alan tried to sue over unfair credit card fees. The Court did so even while acknowledging that nobody in their right mind would actually bring an individual arbitration over the loss Alan suffered—essentially immunizing companies like American Express.
I’ve shown our documentary everywhere from national conferences to law school classrooms to tenant association meetings. Every time, I get two reactions: First, people can’t believe they didn’t know about forced arbitration. And second, they want to do something about it.
This study will go a long way to educating more people about this pernicious practice. But even more importantly, you have the power and obligation to actually do something about it by prohibiting forced arbitration for all consumer financial products. On behalf of all our members, we urge you to do just that without delay.
As part of Alliance for Justice’s ongoing campaign to end forced arbitration in consumer and employment contracts, we’ve worked with a host of grassroots organizers across the country. Students, community members, academics, and attorneys have reached thousands by screening AFJ’s short documentary, Lost in the Fine Print. Long-time friend of AFJ Patti Gorman planned one such screening as part of Conversations on Social Justice Series at Seattle Central College.
We asked Gorman to talk about her experience organizing a screening of Lost in the Fine Print. Responses have been edited for space and clarity.
What interested you about the issue of forced arbitration?
I was totally unaware of it and appalled when I found out about it. How can we be forced to sign away rights that are guaranteed by law? This is a true social justice issue and another indicator of how corporations unduly influence government and our daily lives.
Had those who attended the screening heard of forced arbitration clauses before? Most had not, I believe, probably because they are young students and because many are international students.
Why did you feel students at Seattle Central College needed to see this film? Why did you take on the project of organizing a screening yourself?
The college’s student and staff population is diverse and activist. I just knew this topic would interest them … I took on the organizing because I am an organizer and it comes pretty easily and because I had wonderful support from our librarians, who sponsor these noon time programs.
In addition, I had looked over the online materials created by AFJ, which are excellent, and received lots of support from [AFJ Klagsbrun Fellow] Erik Lampmann. I was a bit nervous at one point about being knowledgeable enough. But once I read the online materials, including links to more detailed court case info, and when I knew I would have a local attorney presenting with me (arranged by Erik), I knew it would be a piece of cake, which it was.
After watching Lost in the Fine Print, how do you hope others will take action to fight forced arbitration?
We need to put pressure on our elected officials to uphold our constitutional rights; hold the Supreme Court accountable, if we can, for upholding the Constitution and not overstepping its bounds into the other branches of government; keep raising hell about this issue, through class actions, when possible; and VOTE!!! I also think that if enough people struck out and initialed the contract clauses that infringe upon their rights when signing contracts, companies would finally get the message that people aren’t going to stand for their outrageous behavior. Of course, I hope many more people will use resources such as Lost in the Fine Print to educate others.
What would you say to others thinking about screening Lost in the Fine Print on their campuses or in their communities?
The whole process from preparation to implementation was fun, intellectually stimulating and very satisfying.
How did you first get involved with Alliance for Justice? What interested you about AFJ’s approach to social change?
I first heard about it from Nan Aron, a friend and former classmate (since 6th grade!). I have always been an activist for social justice. I find AFJ’s approach to helping non-profits be better at what they do [through the Bolder Advocacy initiative]… a compelling strategy—micro to macro. And now, when I see what our Supreme Court is doing that chips away at our Constitutional rights, I believe more than ever that the courts are where we need to put our attention. AFJ works hard and smart.
The librarians of Seattle Central College have graciously uploaded video of the event to their website.
If you would like to organize a screening on your campus or in your community, please contact Erik Lampmann at [email protected] or by phone at 202.464.7388.
Retailer tries to hold customer’s money hostage to forced arbitration
By Trevor Boeckmann
AFJ Dorot Fellow
As we detail in our short documentary Lost in the Fine Print, forced arbitration clauses have become omnipresent in American society. They’re used by companies to prevent consumers from having the chance to stand up for their rights in court when they’re harmed. Yet most of these clauses are buried deep in the fine print of contracts and terms of service.
Now Walmart, already a corporate bad actor in so many ways, has taken this strategy to a whole new level. They found a way to hold a customer’s money hostage until she agreed to forced arbitration.
KTRK-TV in Houston reports that on Black Friday, local shopper Maria Selva tried to buy a new TV at the big-box retailer. Walmart had sold out of the TV by the time Selva came to purchase it, but employees gave her a coupon, and had her pay in full.
She thought she could just pick up the TV at a later date. But after she’d already paid, she was given a notice telling her she had to register online. When she went online, she found that registering the coupon meant agreeing to forced arbitration. She refused to accept the terms, and contacted Walmart to ask for a refund.
Walmart said no.
Instead, the company told her she would have to agree to forced arbitration, receive the TV, and return the TV. Only then could she receive a refund.
It wasn’t until KTRK contacted the company that Walmart finally relented and issued a refund.
The consequences of forced arbitration can be great. In Lost in the Fine Print we document the stories of Nicole Mitchell and Debbie Brenner, victims of discrimination and fraud who were never allowed to defend their rights in court.
Walmart isn’t the only company that has tried to find creative ways to impose forced arbitration.
Take General Mills, for example. Last spring, we told you about their new arbitration policy, which purported to force consumers into arbitration if they entered a company contest, printed a General Mills coupon, or even “liked” Cheerios on Facebook.
But public pressure forced General Mills to back down. Now we’re putting the pressure on other companies. Join our campaign to end forced arbitration and protect everyday Americans.
Watch one consumer’s battle against Walmart and forced arbitration
The next time a woman is forced to choose between her job and her pregnancy, she may not even make it into court.
By Michelle D. Schwartz
AFJ Director of Justice Programs
It’s incredible that UPS refused to make a reasonable accommodation for driver Peggy Young after she became pregnant and her doctor advised her against lifting packages heavier than 20 pounds.
It’s incredible that UPS then forced Young to take unpaid leave for the remainder of her pregnancy, causing her to lose both her wages and her health insurance at the time she needed them most.
It’s incredible that UPS refused an accommodation for Young even as it made such accommodations for workers injured on the job, workers with disabilities falling under the Americans with Disabilities Act, and even drivers who lost their commercial driver’s licenses because of DUI convictions.
It’s incredible that, in 2014, Peggy Young was forced to choose between a healthy pregnancy and her job.
And it is incredible that Peggy Young’s case against UPS made it into court at all.
Today, more and more employees are compelled to accept forced arbitration clauses in their employment agreements, employee handbooks—even job applications. These clauses say that if a dispute should arise between the employee and the company they work for, the employee can’t take that dispute before an impartial jury or judge. Instead, they have to take their case before an arbitrator picked by the company, losing their fundamental right to go to court.
These arbitration clauses apply even in cases of employment discrimination that allegedly violate such hallowed laws as the Age Discrimination in Employment Act, the Equal Pay Act, the Civil Rights Act of 1964, and, yes, the Pregnancy Discrimination Act.
In fact, over the summer we learned that another company that’s no stranger to the Supreme Court—Hobby Lobby—has a forced arbitration clause. That clause kept an employee, Felicia Allen, out of court after she was fired for trying to take unpaid leave during her pregnancy. Hobby Lobby even tried to prevent Allen from receiving unemployment compensation. As we wrote at that time:
When Allen tried to sue Hobby Lobby for discriminating against her based on her pregnancy, she learned that Hobby Lobby had a forced arbitration clause. Allen’s lawyers refused to take her case after they learned of the forced arbitration clause and she—like so many other American consumers and employees—was left out in the cold. Hobby Lobby could take its case all the way to the Supreme Court, but its employee couldn’t even get through the courthouse doors.
In our short documentary Lost in the Fine Print, we tell the story of Nicole Mitchell, another woman forced into arbitration after trying to sue her employer for discriminating against her—this time based on her status as a Hurricane Hunter in the Air Force Reserve.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that prohibits employers from firing, demoting, or failing to hire military reservists because of their reserve duty. But, as Mitchell found, USERRA and other laws protecting against employment discrimination may be worth little more than the paper they’re printed on when violations are forced into arbitration.
Employees fare far worse in arbitration than they do in the courtroom. Researchers at Cornell found that outcomes for employees forced into arbitration are “starkly inferior” to those in litigation.
And the harms of forced arbitration extend beyond the outcomes in individual cases. Because arbitration generally occurs in secret, systemic abuses are never exposed and remedied. So even on the rare occasion that an employee wins in arbitration, there is little incentive for the employer to protect employee rights moving forward.
Take the case of UPS.
In October, with Peggy Young’s case already pending before the Supreme Court, the company announced that, beginning on January 1, 2015, it would offer light duty assignments for pregnant workers. That offer comes too late for Peggy Young, but it is unlikely that it would have come at all if not for the public attention the Supreme Court case has brought. If Peggy Young had been forced into arbitration as Felicia Allen and Nicole Mitchell were, , that policy change likely never would have come.
Laws like the Pregnancy Discrimination Act vindicate critically important societal goals. Their proper interpretation should be decided in the full sunlight of the courtroom—not in a secret corporate tribunal.
Today, we stand with Peggy Young, and we hope that the Supreme Court will reverse its recent trend of hostility to working women. In the long term, though, we know that protecting Peggy Young and all who face discrimination at work will require reversing the Supreme Court’s decisions upholding forced arbitration under virtually any circumstances.
Everyone who cares about fair, discrimination-free workplaces should join us in our campaign to do just that.
Ever been ripped off by a big bank? Were you charged fees you never expected? Were you misled about the terms of a loan?
If so, you may have a tough time standing up for your rights in court. That’s because many big banks have buried forced arbitration agreements in the fine print of their customer contracts. As we explain in our short documentary, Lost in the Fine Print, if the bank has a forced arbitration clause you can’t take the bank to court. Instead, you have to go to an arbitrator effectively chosen by the bank itself.
One study found when consumers go up against businesses in arbitration, the business wins 94 percent of the time.
The Consumer Financial Protection Bureau has the power to ban forced arbitration in contracts for consumer financial products, including banking services. It is expected to issue a report on the issue next year.
But we’re not waiting. We’ve joined with other activist and consumer groups to demand that five big Wall Street banks drop their forced arbitration clauses. Want to join us? Click here to sign our petition.
If we don’t stop them, the practice of forced arbitration will only spread. And you can take that to the bank.
Good thing the Federal Trade Commission is acting, because forced arbitration prevents consumers from effectively fighting for themselves.
Have you been “throttled” by AT&T?
According to the Federal Trade Commission, since 2011 it’s happened more than 25 million times, affecting 3.5 million customers.
Throttling refers to slowing down your internet connection when you use more data than your provider wants you to use, whether for email, streaming video or anything else.
The FTC alleges AT&T throttled customers who pay $30 a month for data plans that AT&T calls unlimited – in some cases slowing their internet speeds by up to 90 percent. AT&T says it told its customers they could be throttled. The company says it put notices in bills (and who doesn’t read every word of their cell phone bill)? They also claim to have sent emails and text messages to customers on the verge of being throttled. But, according to The New York Times:
While AT&T said that customers were notified by text message before the program was put into effect, the commission said that “most unlimited mobile data plan customers have never been sent a text message or email” about it.
And, as The Washington Post reports:
The FTC found in its investigation that AT&T was aware that consumers saw throttling as inconsistent with promises of “unlimited” data. When the company explained the concept to focus groups, the FTC reported in its suit, customers grew upset. The company’s own researchers then urged AT&T’s marketers that “saying less is more” when it comes to selling such services. …
“AT&T promised its customers ‘unlimited’ data, and in many instances, it has failed to deliver on that promise,” said [FTC chairwoman Edith] Ramirez in a statement. “The issue here is simple: ‘unlimited’ means unlimited.”
And, the Post reports, this is not the first time AT&T has come under scrutiny from the FTC. In addition to “throttling,” the company also has been accused of “cramming” :
AT&T is also paying $105 million to settle charges from this month that it loaded consumers’ wireless bills with bogus third-party fees without their consent. Those fees, according to the FTC and the [Federal Communications Commission], added “hundreds of millions of dollars” to AT&T’s bottom line over a five-year period and misled customers into thinking that they were being charged for AT&T’s own services.
Since becoming FTC chairwoman a year ago, Ramirez has won high marks from consumer advocates. But the rights of consumers should not be dependent on who happens to be running a government agency – when an agency has the power to act at all. Consumers should be able to band together and fight for their rights in court.
But when it comes to AT&T, they can’t. That’s because AT&T has something else in the fine print, along with the notice about throttling: AT&T has a forced arbitration clause – the kind of clause we take on in our 20-minute documentary Lost in the Fine Print.
Indeed, AT&T has a notorious place in the annals of forced arbitration. When customers were charged more than $30.00 each for phones AT&T said would be free, they tried to band together to sue the company. AT&T appealed all the way to the Supreme Court. In a decision written by Justice Antonin Scalia, the five-member conservative majority ruled that AT&Ts forced arbitration clause shut the customers out of court.
So now that AT&T is at it again, victims of throttling can’t come together to stand up for their rights in court. Instead they have to go one at a time to an arbitrator essentially chosen by AT&T, or they can go, again one at a time, to small claims court. One person actually did that. It took a lot of time and effort. And though he got a refund on part of his bill, even then he couldn’t stop AT&T from continuing to throttle him.
The other 3,499,999 customers allegedly throttled by AT&T shouldn’t have to do the same in order to get justice.
So please go to www.lostinthefineprint.org and click on the “Take Action” link. It will take you to a page where you can demand that AT&T – and other companies you deal with that use forced arbitration – remove those clauses from their terms of service.
Watch this story about AT&T and throttling from NBC Nightly News:
The photos you send via Snapchat may not really go away, but your rights disappear in a flash
By now you’ve probably heard about what’s been called “The Snappening” – the leak of at least 90,000 photos and 9,000 videos sent by users of Snapchat – users who probably thought those images would disappear after ten seconds.
After all, that is Snapchat’s big selling point. But now there is reason for Snapchat users – and their parents – to be very, very concerned. As Marlow Stern writes in The Daily Beast:
Because of its “self-destruct” reputation, the app is a popular tool among youngsters for transmitting sexually explicit material. Snapchat claims that 50 percent of its users are between 13-17 years of age, this potentially brings “The Snappening” into child pornography territory.
That’s enough to scare any parent of a Snapchat user. But as we explain below, while Snapchat may not have done a good job of protecting its users’ security, it’s doing a great job of protecting itself. Snapchat makes your rights disappear – by using a pernicious practice known as forced arbitration.
Snapchat says the massive leak of photos and videos is not the company’s fault. They issued a statement blaming it all on third-party applications which work around the self-destruct feature:
The company did not answer questions about what steps it has taken to warn its users about these third-party services aside from its Terms of Service.
Chris Eng, vice president of research at computer-security research firm Veracode, said Snapchat has “a history of not taking security seriously.” [One of the third-party apps] was in the [Google Play Store] since 2013. That alone suggests to me that they’re not being very aggressive’ about policing third-party apps, Eng said.
Similarly, in a commentary for Wired Prof. Woodrow Hartzog of the Cumberland School of Law at Samford University writes:
The guidance and rules are buried in the fine print with no explanation for the ban on third-party software. This dense, boilerplate agreement places the burden of securing against this attack on the party in the relationship least likely to have knowledge of the vulnerability—the user. People who relied upon the app’s implicit promise of ephemera and relative safety wouldn’t be wrong to feel betrayed by Snapchat’s “it’s not us, it’s you” attitude.
Forced arbitration means that Snapchat users, instead of being able to stand up for their rights in court, will have to go before a private arbitrator. It also means that Snapchat chooses the arbitrator, Snapchat decides where the arbitration will take place (Los Angeles County – no matter where the victim happens to live), and Shapchat requires that the proceedings be secret. There is no effective way to appeal. And the victims and their parents can’t band together to bring their legal action; each must take on Snapchat individually.
Given how the deck is stacked, it’s no wonder that one study found that, in consumer disputes, the consumer forced into forced arbitration loses 94 percent of the time.
But there is one thing we can do. If you’re a Snapchat user go to our action page where you can demand that Snapchat stop using forced arbitration. You can demand the same of many other companies with which you’re doing business.
When the time comes to decide, once and for all, if Snapchat has any responsibility for the leaking of 90,000 photos and 9,000 videos, shouldn’t that decision be made by a judge and a jury – not an arbitrator chosen by Snapchat?
The latest news about the corporation with religious rights takes irony to new heights
By Michelle D. Schwartz
AFJ Director of Justice Programs
Justice Ginsburg’s masterful dissent in Burwell v. Hobby Lobby Stores, Inc. begins with this chilling sentence:
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.
When I read that line, two words immediately came to mind: forced arbitration.
Except that in the forced arbitration context, you could end that sentence after the phrase “can opt out of any law.” Full stop.
The Supreme Court has already held, in decision after decision, that commercial enterprises can opt out of virtually any federal or state law merely by inserting a few words into the fine print of their contracts and online terms of service.
President Obama understands how harmful this is. Today, he plans to sign an executive order barring companies seeking government contracts from forcing their employees into arbitration over civil rights or sexual harassment claims.
Of course, Hobby Lobby isn’t likely to be pursuing government contracts. So the company will be able to continue to impose forced arbitration on its employees.
More on that below, but first, a quick review of what forced arbitration is all about (for more, check out AFJ’s page on the subject): Every day, when you use Instagram, buy a cell phone, use a Microsoft product, get a credit card, and generally live in the 21st Century, you are forced to sign away your constitutional rights. We’re all familiar with the “click-through contracts” to which we’re frequently asked to consent without any opportunity to negotiate. Today, an increasing number of those contracts in the consumer context and even in the employment realm include, in the fine print, a requirement that any dispute with that corporation be resolved not in the courtroom, but in a private, rigged system called forced arbitration.
What’s so bad about forced arbitration? The decision-maker is chosen and paid for by the corporation that harmed you—not surprisingly, a study found that an arbitration firm ruled for the company 93.8 percent of the time. The normal rules of evidence don’t apply. No appeal is possible. And everything is done in secret, so wrongdoing doesn’t get exposed and stopped.
Yet the Supreme Court has held that companies’ right to force their customers and employees into arbitration trumps not only the Seventh Amendment right to trial by jury, but all manner of rights guaranteed under federal and state laws. Sound familiar?
In short, forced arbitration is a get-out-of-jail-free card for corporations that puts such hallowed laws as the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Equal Pay Act at risk. So if your employer harasses you at work because you’re an African American, your employer pays you less because you’re a woman, or you get fired because of your age, you could be forced out of court—and forced to grin and bear it.
And so, ever since the Hobby Lobby decision came down just over a month ago, I’ve been telling anyone who would listen about the similarities between Hobby Lobby and forced arbitration. And then things came full circle. Earlier this week, RH Reality Check reported that Hobby Lobby itself has a forced arbitration clause in its employment contract.
Hobby Lobby’s clause came to light after it allegedly fired employee Felicia Allen when she tried to take unpaid leave for her pregnancy. Then Hobby Lobby tried to prevent the employee from receiving unemployment compensation. That hardly sounds like the company that argued not only that its owners’ religious beliefs prohibited them from providing insurance coverage for certain kinds of birth control, but also that those beliefs compelled it to provide health insurance for its employees.
It gets worse. When Allen tried to sue Hobby Lobby for discriminating against her based on her pregnancy, she learned that Hobby Lobby had a forced arbitration clause. Allen’s lawyers refused to take her case after they learned of the forced arbitration clause and she—like so many other American consumers and employees—was left out in the cold.
Hobby Lobby could take its case all the way to the Supreme Court, but its employee couldn’t even get through the courthouse doors.
If you’re like me, you’re mad as hell about the Hobby Lobby decision. And if you’re mad about Hobby Lobby, you should also be furious about forced arbitration and take action to support the solution, the Arbitration Fairness Act.
The computer giant is trying to force us into forced arbitration
Microsoft, the company that gave us Vista, Ctrl-Alt-Delete and Clippy, has something in store for us that’s even worse. The company has been phasing in forced arbitration clauses in its “services agreement.”
That means if you are harmed by a Microsoft product or service, you can’t stand up for your rights in court. Instead, you have to take your case to an arbitrator hired by Microsoft. Arbitrators do not need to be lawyers or follow precedent, yet their word is nearly always final and unappealable. One study found that such arbitrators rule for the businesses that hire them 94 percent of the time.
Microsoft also won’t let you band together with others the company has wronged and bring a class-action suit – often the only way to stop a corporation from cheating millions of consumers. The latest version of the services agreement makes this ban even more strict.
One can see why Microsoft might be fond of forced arbitration. In a 2003 e-mail, company founder Bill Gates used the following terms to describe what it was like to use one of his own products:
disappointed, backwards, unusable, totally confusing, strange, pathetic, completely odd, weird, scary, crazy, slow, garbage, not usable, crapped up, crap, absolute mess, craziness, terrible.
Perhaps the best indicator of just how bad a deal forced arbitration is for consumers is the sneaky way big businesses force it on us.
Take Microsoft’s latest email announcing the changes. “Our users’ needs are at the center of everything we do,” says the happy little email. “That’s why we are updating the Microsoft Services Agreement.” But there’s no mention of forced arbitration in the email itself. And there’s no mention of it in the FAQ that supposedly offers the “highlights.”
No, you have to click on the link to the fine print and scroll down to Section 10 before you find out what Microsoft is taking away. If forced arbitration is so great, why does it have to be forced? Why not offer it on a voluntary basis? And why aren’t companies bragging about it instead of tucking it away in those long, long “agreements” that few of us have the time to read?
There is a solution. The Arbitration Fairness Act would put an end to these outrages. If you don’t want your rights “clipped” by the company that gave us Clippy – or by all the other corporations on the forced arbitration bandwagon – tell your Members of Congress to pass the Arbitration Fairness Act.
By Erika K. Duthely
AFJ Dorot Law Fellow
UPDATE, APRIL 20, 2014: General Mills has given in to public pressure and reversed the policy described below. But even in the blog post announcing the reversal, the company continues to mislead consumers about what forced arbitration really does. And, of course, other companies continue to impose forced arbitration clauses on consumers and employees. So we still need the Arbitration Fairness Act.
Take action. Tell Congress to stop General Mills – or any other company – from putting “Trix” in the fine print.
Read more about Forced Arbitration.
Did you enjoy a bowl of cereal this morning, like so many other Americans? Well, you may want to reconsider next time you pick up that spoonful of Cheerios.
Increasing numbers of companies have begun including these clauses in their terms of service, ever since the Supreme Court ruled in AT&T Mobility v. Concepcion that federal arbitration law – allowing for such arbitration clauses—preempts all state laws that may limit their use. This was made even worse when the Supreme Court decided in American Express Co. v. Italian Colors Restaurant that corporations can enforce class action bans in arbitration agreements even when doing so would make it effectively impossible for individuals and small businesses to vindicate their legal rights. Although there was a flood of forced arbitration clauses that hit the market after these decisions, General Mills is the first large food company to include such a clause, which has dangerous implications for public safety.
This is unacceptable. Americans have the right to have their day in court and we cannot continue to let big businesses take this right away from us. There is a solution. The Arbitration Fairness Act would put an end to these injustices.
Take action. Tell Congress to stop General Mills – or any other company – from putting “Trix” in the fine print.
Read more about Forced Arbitration.
“Forced arbitration” undermines
our civil rights laws
By Michelle D. Schwartz
AFJ Director of Justice Programs
When I was a teenager, I spent two summers working as a counselor at a day camp in suburban New Jersey. Toward the end of the second summer, I received an offer to return the following year. Later that day, I happened to be chatting with a friend who had similarly received an offer to return—for several hundred dollars more.
We had both worked at the camp for two summers, held the same job, were the exact same age and at the exact same educational level, and were well-liked and recognized as hard workers.
The only difference? He’s a man.“As long as employers are permitted to opt out of federal laws through forced arbitration, the promise of equal pay will never be fully realized.”I was angry, but I was left with little recourse other than fuming. That’s because my terms of employment forbade me from discussing my salary with anyone. So did my friend’s—so my speaking up could get him in trouble as well. So I stayed quiet, and I chose to pursue different opportunities the following summer.
For most American women, pay discrimination is far more insidious. American women make, on average, 77 cents for every dollar men make. That wage gap means that the average American woman had to keep working until today—April 8, 2014—just to earn what a man made in 2013. And it means that women—often the sole or primary breadwinners—have less ability to provide for themselves and their families.
Yet just as they could half my lifetime ago, employers today can and do prevent their employees from, and penalize their employees for, discussing their pay with coworkers. As a result, it is often virtually impossible for women to learn that they’re being discriminated against. And, on the off chance women do learn such information, it’s even harder for them to fight back.
Today, President Obama is signing an Executive Order that would prohibit government contractors from retaliating against their employees for simply discussing their pay with one another. And the Senate this week will vote on the Paycheck Fairness Act, which, among other things, would extend that anti-retaliation rule to all employers. Those are both important steps that Alliance for Justice strongly supports.
But as long as employers are permitted to opt out of federal laws through forced arbitration, the promise of equal pay will never be fully realized.
Increasingly, employment and consumer contracts include fine print that forces Americans to sign away their right to go to court—and instead directs them into arbitration, a system of privatized dispute resolution that is rigged to benefit corporations.
A series of bad Supreme Court decisions has upheld forced arbitration even where it means that workers, consumers, and even small businesses have no way of vindicating rights enshrined in landmark federal laws. Laws put at risk include Title VII, the Equal Pay Act, and the Lilly Ledbetter Fair Pay Act.
Recently, the Oakland Raiderettes fell down the forced arbitration rabbit hole when they brought a suit seeking fair pay.
As AFJ President Nan Aron wrote in the San Francisco Chronicle:
The Raiderette cheerleaders are trying to sue the Raiders because they’re paid only $125 per game and even that money is withheld until the end of the season. But the Raiders may be able to intercept the suit before it ever gets to court. The cheerleader contract has a forced arbitration clause requiring them to take their dispute to – seriously – the commissioner of the National Football League.
Fortunately, there is a way to protect the gains we’ve made—and any more that are yet to come. It’s called the Arbitration Fairness Act, and it would ban forced arbitration in consumer, employment, and civil rights disputes.
On this Equal Pay Day, let’s celebrate the President’s executive action, fight for the Paycheck Fairness Act, and urge our representatives to pass the Arbitration Fairness Act without delay.