Kennedy/Feingold Hope to Restore Workers' Right to Sue

By Jason Pierce | July 7, 2008 | 8:28 PM EDT

( - Some Senate Democrats are attempting to outlaw the rights of an employer to insert binding arbitration provisions into contracts with employees, in an effort, they say, to protect employees' civil rights. However, a former trial lawyer, now representing the National Arbitration Forum, says lawyers, not employees, would benefit from such a law.

Democratic Senators Edward Kennedy from Massachusetts and Russell Feingold from Wisconsin have introduced The Preservation of Civil Rights Protections Act. Their bill follows a March 21, 2001 ruling by the U.S. Supreme Court, in the Circuit City Stores Inc. v. Adams case. That decision allowed employers to compel their employees to sign an arbitration agreement as a condition of employment, thereby forcing employees to waive their right to sue for discrimination, wrongful termination, or other grievances.

The Kennedy/Feingold bill seeks to restore the ability of employees to take employment discrimination claims to court. It would not outlaw arbitration, but would require that arbitration in civil rights claims be used only if an employee had entered into the agreement voluntarily before a dispute arose.

"Employers should not be able to effectively eliminate rights that Congress has specifically granted in federal civil rights statutes by inserting a mandatory arbitration provision in an employment contract," Feingold said.

"Binding arbitration is only appropriate when it is agreed to knowingly and voluntarily by parties who have relatively equal bargaining power," Feingold said. "That is almost never the case in an employment situation."

Feingold said he is not anti-arbitration, but does object to "mandatory, binding arbitration clauses in employment contracts, entered into by the employer and employee before a dispute has arisen."

\tx2340"I believe that forcing people to give up their legal rights to get or keep a job is wrong," he said.

Edward Anderson, general counsel of the National Arbitration Forum, said it's not a question of employees giving up their civil rights, but one of creating more business for trial lawyers.

"The courts have held repeatedly that binding arbitration does not violate one's civil rights," Anderson said. If an arbitrator fails to give an employee his full legal protection, "an arbitration clause is not enforceable," Anderson said.

In fact, Anderson said, plaintiffs usually do much better in cases using arbitration rather than litigation.

"Almost twice as many employees win in arbitration as when in the court system," Anderson said, adding that the Kennedy/Feingold bill would "cause there to be lawsuits, where there are now arbitrations."

"I think there is no question about it, that that is why the trial lawyers want to change the law," Anderson said.

With more trials, disputes would take longer, and cases would end up being decided by which party was able to last the longest rather than which side was right, he said. "The process has become so burdensome that it's no longer an exercise in truth seeking," Anderson concluded.

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