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That Pro-Life Hobby Lobby

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Hobby Lobby puts its pro-life, pro-child policies into practice:

When a very pregnant Felicia Allen applied for medical leave from her job at Hobby Lobby three years ago, one might think that the company best known for denying its employees insurance coverage of certain contraceptives—on the false grounds that they cause abortions—would show equal concern for helping one of its employees when she learned she was pregnant.

Instead, Allen says the self-professed evangelical Christian arts-and-crafts chain fired her and then tried to prevent her from accessing unemployment benefits.

“They didn’t even want me to come back after having my baby, to provide for it,” she says.

And here I thought Hobby Lobby was acting out of very strong principle for life and not because it hates women and wants to punish them for having sex.

There’s also this gem:

When Allen applied for unemployment benefits, she says Hobby Lobby’s corporate office gave the unemployment agency a false version of events, claiming she could have taken off personal leave but chose not to. In the end, Allen says she won her claim for unemployment benefits, but she felt she had been wrongly discriminated based on the fact that she was pregnant. In February 2012 she sued Hobby Lobby, but her lawsuit was swiftly dropped because, like most—if not all—Hobby Lobby employees, Allen had signed away her rights to sue the company.

Though the multibillion-dollar, nearly 600-store chain took its legal claim against the federal government all the way to the Supreme Court when it didn’t want to honor the health insurance requirements of the Affordable Care Act, the company forbids its employees from seeking justice in the court of law.

Allen had signed a binding arbitration agreement upon taking the job, though she says she doesn’t remember doing so. The agreement, which all Hobby Lobby employees are required to sign, forces employees to resolve legal disputes outside of court through a process known as arbitration.

Lying so she couldn’t get unemployment is very special, but forcing employees to sign documents waiving their right to sue the company in order to be hired should be as illegal as the yellow-dog contract. I would ask how something like that is even legal in this nation, but of course I already know why–because corporations control our lives in ways they have not in a century.

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  • Warren Terra

    Along with “corporations are people” and some version of “money-is-speech” (and especially the intersection of the two), Mandatory Binding Arbitration is one of those relatively recently manifesting legal concepts we really need to reconsider (I know all of these ideas date back decades, and some about a century – but they’ve only really come into full flower and widespread implementation quite recently).

    • DrS

      Yeah, cutting off the people from accessing the judicial system seems problematic.

      • tsam

        I thought that was illegal anyway–that when a person signs a POS like that it couldn’t be binding since it was highly unlikely that said person was getting advice from legal counsel when forced to sign it as a condition of employment. Maybe that’s just wishful thinking on my part, but I thought I had heard that somewhere.

        (IANAL)

        • DrS

          I too am not a lawyer (I2ANAL?) and I’ve always sort of heard that too.

          • I2ANAL

            I think that’s called a fiber-optic colonoscope.

            • Hogan

              OW DAMMIT

            • DrS

              Had not realized how invasive the telecom industry had become. I take it this was from the snowden dox?

              • In the old days, we had to make do with roughage-optic colonoscopes.

              • Pat

                And you liked it! At least, N_B did.

        • Warren Terra

          Also not a lawyer, but I’m pretty sure contracts that mandate the use of binding arbitration have been found to be valid in some cases, and to preclude access to the courts, and specifically in cases of employer/employee disputes.

          I believe some others may have been found invalid, in customer/vendor relationships. But I’m just going by my rather vague memories here …

          • tsam

            I’m involved in vendor/contractor purchase contracts (building material supplier to commercial projects) and every one I’ve ever bothered to read had a binding arbitration clause in it. Which is fine–generally speaking, arbitration in a breach of contract between two corporations is probably effective (I’m lucky enough to have never dealt with that in 22 years).

            But I was fairly certain that a potential employee cannot sign away his/her right to settle grievances in court. If it’s not illegal, it definitely should be. The idea that a corporation can get away with extorting a person into signing away basic rights in country that claims to be bound by the rule of law is pretty fucking ridiculous. But then…lots of ridiculous shit has hit the worker fan in the last 40 years or so…

            • cpinva

              “The idea that a corporation can get away with extorting a person into signing away basic rights in country that claims to be bound by the rule of law is pretty fucking ridiculous.”

              ah, but they aren’t being “extorted”, because they could always go get another job, if they don’t want to sign away their rights to legal recourse. or at least that’s what I’ve heard.

        • dp

          See, you think that contracts of adhesion (where one part has much greater bargaining power) should not be enforced against the weaker party. Unfortunately, the US Supreme Court (and most state courts) generally don’t agree with you.

          • tsam

            Well that’s just stupid and I don’t like it.

            • Hogan

              I’m noting that line for my union’s next contract negotiation.

              • tsam

                Take this one too:

                GET THEE BEHIND ME, SATAN!

                Shuts down dissent immediately.

        • searcher

          Even if the clause is unenforceable, there’s an incentive for the company to put it in anyway: their employees are rarely lawyers, and most of them will think it is binding. Or even if they don’t think it is binding, they will feel honor-bound to adhere to it anyway. A lot of those good, salt-of-the-earth working folks that some people claim to love but really just love taking advantage of have silly notions about behaving honorably and keeping their word and sticking to their agreements.

          If a clause in a contract prevents 90% or 99% of lawsuits, it’s more than worth it, even if it doesn’t prevent 100% of lawsuits.

          • Richard Gadsden

            What would be a really good idea for a legislator would be to devise a really pro-employee employment contract (two year’s full pay for maternity, 40 days’ paid vacation every year, and pay twice a day’s pay for any untaken vacation; 10% daily interest, compounding daily, for any late payment, that sort of thing), and pass a law stating that any that purports to include any of the following (where arbitration and an bunch of other legal horrors are listed) would result in the contract being replaced wholesale by the pro-employee maximal contract.

            Lawyers would then advise employers to be super-careful not to cross the line, or else their entire workforce starts demanding lots of money for their back-holidays with interest.

    • Let’s not forget “at will” and “right to work”.

      I find it…interesting…that for some strange reason corporations keep destroying institutions (e.g., unions) in favor of other institutions (e.g., binding arbitration) wherein their power disparity is made even greater.

      Funny that.

      Every now and again I just look at the anti-union laws and think, WTF. I’m fairly confident that two companies (A and B) can enter into an agreement which is exclusive and wherein one company provides labor (A) to the other (B) (e.g., A is a janitorial service).

      So, what’s the difference between that and letting a union form an agreement with B to have a closed shop? Well, natural law, I guess:

      The Right to Work principle–the guiding concept of the National Right to Work Legal Defense Foundation–affirms the right of every American to work for a living without being compelled to belong to a union. Compulsory unionism in any form–“union,” “closed,” or “agency” shop–is a contradiction of the Right to Work principle and the fundamental human right that the principle represents. The National Right to Work Committee advocates that every individual must have the right, but must not be compelled, to join a labor union. The National Right to Work Legal Defense Foundation assists employees who are victimized because of their assertion of that principle.

      Bonkers.

      • tsam

        Union busting as a human rights issue. Now I’ve seen it all.

        (That’s not true, it gets crazier than that, but that phrase just popped into my mind when I read that)

        • Yeah, totally crazy.

          I would like to see their analysis of exclusive subcontracting.

          And it’s SO weird. If anything is not a natural right, surely “the right to be employeed by a specific employeer without being a member of a union” is not one.

          • tsam

            I’d say that having some collective representation is the actual human right–so that you can, you know, survive on what you get paid. But then I’m a crazy ass liberal hippie commie socialist, so what the fuck do I know?

            • Davis X. Machina

              There are half-a-dozen popes in there with you, pitching.

              So it’s not just a commie thing.

              • Aimai

                Aren’t most of them dead, though? How much pitching power do they have?

                • hey now.

                • cpinva

                  more to the point, how many divisions does the pope have?

                • Pat

                  The Knights Templar were greatly feared, once, but I think they don’t act out in the open as much as they did.

  • Malaclypse

    The good news is that, at least in some jurisdictions, some employment claims are not subject to arbitration. But we’re definitely into IANAL territory.

  • retsof

    some companies don’t want workers to collect U.I. benefits because it increases the employers’ rates. its all about saving money for the corporation.

    Holly Hobby isn’t a Christian organization. It is a capitalist organization and as such, needs to make every dime it can, any way it can, at anyone’s expense.

    The fact americans think this is o.k. is just another example why American is no different from countries where the Taliban rule.

    • runsinbackground

      The fact americans think this is o.k. is just another example why American is no different from countries where the Taliban rule.

      I’m no stranger to creative hyperbole, but I think it’s important to note that the Bill of Rights actually does make a difference, if only in making it possible for America to in theory be a nation in which all faiths and creeds are equally accepted, rather than one where most are explicitly disallowed. The problem’s not hopeless, it’s just hard.

  • Gwen

    Oh good, now we get to see if Title VII sex discrimination cases are affected by RFRA (the SCOTUS pinky-swears they aren’t!).

    • The idea that gender discrimination or patriarchy exist anywhere in the Bible or are elements of Christian faith is clearly false. The alleged onslaught of RFRA Title VII cases are merely hysterical fear-mongering crazy talk perpetuated by rabid pagan feminazis. I wouldn’t sweat it.

      • efgoldman

        If Gawd didn’t mean for women to be discriminated against, he wouldn’t have created pregnancy as an exclusively female phenomenon.

        • Aimai

          On the contrary–men who get pregnant will be fired too so Hobby Lobby’s behavior is perfectly gender neutral.

          • Warren Terra

            Dammit Aimai, you’ll be giving them ideas. After all, it’s pretty common to refer to the male half of an impending couple of parents as “pregnant”, and firing him while he’s still up the spout may be cheaper than giving him paternity leave (which may be paid paternity leave?).

            • Aimai

              I love the expression “up the spout.”

          • malindrome

            The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.

            EDIT: Darn it, I should read further down thread before posting.

        • In its majestic equality, the law allows Hobby Lobby to fire both pregnant women and pregnant men alike, deny them unemployment benefits, and bind them to arbitration clauses.

  • Gwen

    “Lying so she couldn’t get unemployment is very special, but forcing employees to sign documents waiving their right to sue the company in order to be hired should be as illegal as the yellow-dog contract. I would ask how something like that is even legal in this nation, but of course I already know why–because corporations control our lives in ways they have not in a century.”

    Agreed x10000000.

    Why isn’t reform of the American Arbitration Act not a specific plank in the Democratic Party platform? The AAA has been abused to the point of cruelty and injustice by corporations against both unsophisticated consumers and employees.

    The AAA should not be applicable to an “at will” employer-employee relationship. It should not be applicable to a consumer agreement unless it is specifically bargained for (e.g. on a separate sheet of paper, perhaps with special consideration explicitly given for that agreement — “we’ll give you five bucks off your retail price, if you sign this arbitration agreement”).

    • Gwen

      And, class-action arbitrations should be specifically permitted.

      • Fearless Navigator of the New LGM Comment System

        FAA, not AAA. And class action arbitrations are permitted, though the arbitration agreement can preclude them.

        In my experience (not employment), opposition to arbitration is a little overblown. First, it’s pretty rare that you get a biased arbitrator if you go through the legitimate organizations (AAA, NASD [edit: err, I mean FINRA], etc.). And second, the big companies are getting increasingly reluctant to demand arbitration because they lose the right to appeal as well (which is important when things like punitive damages caps come into play).

        • Barry_D

          Well, on the heavily weighted other hand, the company can hire the arbitration firm they want, so it’s like a legal system where the other party hires the judge.

          • Fearless Navigator of the New LGM Comment System

            I’m sure that goes on in some industries, but companies trying to rig the arbitration game have to be really careful. Evident bias is one of the biggest grounds for getting arbitratal awards kicked, and once an arbitrator — and even his or her firm/organization — gets a judicially-noticed reputation for bias, it makes it really hard (read: impossible) to use him or her from then on.

            But I think the bottom line is that the fairness and/or prevalence of the arbitration process will vary on an industry-by-industry basis. In the field I’m most knowledgeable about (mostly through friends/colleagues who work in it), it really isn’t used that much anymore because it’s expensive to get cases to arbitration (and the “litigation” costs aren’t that much less in that forum) and if the arbitrator does something screwy like award punitive damages that are a multiple of the cap, the company is pretty much SOL. Plaintiffs don’t like it either for pretty much the same reason but in reverse.

        • Gwen

          Yes, I was having a brain-fart.

  • Heron

    Access to a jury trial in federal civil cases exceeding 20 dollars in amount is a Constitutional Right, and workplace sex discrimination is a Federal Offense as it violates Title VII of the Civil Rights Act. Thus, a mandatory arbitration clause is not only a violation of her civil rights(since it deprives her of such a jury trial, and thus invalid and non-binding on its face), but using such a clause to deprive an employee from bringing a sex-discrimination suit is itself a separate crime; a violation of Title VII. Since the 14th, Constitutional protections have applied to States and to private businesses though that wasn’t really enforced until the Civil Rights Act(hence the lack of segregated diners), so these protections aren’t exclusively from federal discrimination.

    The logic of our laws is crystal clear on this. Whether judges will acknowledge that is an entirely different matter.

    • Harry Huntington

      The Supreme Court decisions affirming the right of corporations (or others) to compel arbitration under the Federal Arbitration Act by putting arbitration clauses has consistently been affirmed by the Supreme Court. What is most interesting, in the Allied-Bruce Terminix v. Dobson case, where the Supreme Court held that the FAA pre-empted state laws barring pre-dispute arbitration clauses, the majority opinion was written by Breyer, and Scalia and Thomas dissented.

  • etv13

    The federal courts have enforced arbitration agreements under the FAA in both the employment and the consumer setting. California courts keep pushing back, but the grounds for doing so keep getting narrower and narrower.

    Arbitration agreements don’t bar state or federal agencies from investigating and suing; maybe we should be pressing them to do so where employees can’t. I am in general in favor of governmental enforcement of wage and hour and anti-discrimination laws as opposed to class actions, which typically lead to big fee awards for plaintiffs’ lawyers and very small damages for individual employees.

    • Warren Terra

      Class actions may have the low rewards for plaintiffs that you cite, and maybe that could be improved, but so far as I know (not a lawyer, no personal experience, etcetera) they also mean no individual plaintiff (possibly no plaintiff at all) is footing escalating legal bills, and while far too much of the settlement/judgment winds up with the lawyers rather than the plaintiffs, at least it is punitively taken away from the party at fault.

  • etv13

    The federal courts have enforced arbitration agreements under the FAA in both the employment and the consumer setting. California courts keep pushing back, but the grounds for doing so keep getting narrower and narrower.

    Arbitration agreements don’t bar state or federal agencies from investigating and suing; maybe we should be pressing them to do so where employees can’t.

  • dp

    The Catholic school my first wife worked for as a teacher pulled the same crap — fired her when she was put on bed rest while pregnant. The subsequent miscarriage is probably why she and I divorced a year later. But I’ve never forgotten how those “pro-life” nuns treated her.

    • tsam

      Oh, that’s fucking infuriating to read.

      • Hogan

        My rage and my sadness have fought to a draw. Winner: gin.

        • Gin always wins. As it should.

          • Anonymous Troll

            Gin and bear it

    • Aimai

      I’m so very sorry, dp. What a horrific story.

      • dp

        Thank you (and Bijan Parsia too). We’ve both moved on (it was almost thirty years ago), but it still makes me angry.

    • Awful. I’m very sorry.

  • wengler

    Hobby Lobby- stuffed wall-to-wall with crap from China, a country where forced abortions are a thing.

  • etv13

    In a government investigation/prosecution, the employees aren’t footing any attorneys’ fees either, and you don’t tend to end up with a huge disproportion to either the amount at stake, or the degree of fault.

    The advice I’m hearing from outside employment lawyers (I am an in-house attorney) is that if you want to make an employee arbitration provision stick, you’d better include in it that you’ll pay the arbitrator’s fees. I don’t know what the Hobby Lobby arbitration provision said, or what the actual underlying facts really are, but it sure sounds like the employee had a claim that was worth pursuing even in that forum.

  • Anonymous Troll

    The problem isn’t the FAA, and it isn’t corporations.

    The problem, as someone above noted, is contracts of adhesion. We have a theory that people should get the benefit of their bargains. Unfortunately, that assumes that there has been bargaining.

    In about 1896 Henry Maine wrote a book titled “Ancient Law”. He aargued that as the law evolved from ancient to modern, relations among people were moving from being controlled by status to being controlled by contract. Status relations are things like master and servant, guardian and ward, parent and child, etc. It used to be that you could look up “Master & Servant” as a topic in the decennial digest, and find the case law. The rights and duties of status relations are defined by common law, usage and custom, where contractual rights and duties are defined by the contract. Sir Henry Maine thought this change was good, and was progress.

    In some ways we are moving backwards. Through the EEO and ADA and other specific laws were are defining some of the rights and duties of the employer-employee relations as matters of status and not subject to contracts.

    I wonder if it’s time to be arguing that we should re-invent a common law of status relations, including employer-employee. The doctrine could be based on unconscionability, on adhesion, or on doctines of fairness arising out of equity.

    That would be a much broader, and perhaps more consistent and sensible approach, than statute by statute tinkering.

    p.s. 4 minutes isn’t enough to find all my typos and spellos. sorry

  • Rat

    It’s misleading to say Allen’s “lawsuit was swiftly dropped” because she “waived her right to sue.” That makes it sound like she has no remedy at all when she does have a remedy – she just must pursue it in arbitration, rather than a court. If you check the court docket, it shows that her lawyer and Hobby Lobby’s lawyer agreed to pursue the matter in arbitration, per the agreement, and that’s why the “lawsuit” was “dropped.”

    Many plaintiffs actually prefer arbitration because it’s generally considered to be a forum that focuses more on equities than technical legal rules and it’s much harder (often impossible) for defendants to win on a dispositive motions, so plaintiffs get to be heard. Contrary to someone’s contention upthread, the corporate defendant doesn’t get to pick the judge — usually both sides “rank” potential arbitrators, including retired judges, according to their preferences and reach an agreement on who will hear the case.

    While some corporate defendants prefer arbitration because they perceive it to be cheaper (it’s often not), most don’t like it because it’s unpredictable and the decision is almost always unreviewable. Instead, the big upside of arbitration agreements for corporate defendants under the FAA is the ability to enforce class action waivers. These defendants are willing to pay the “price” of unpredictability in single plaintiff cases (like Allen’s) in exchange for being able to strip class action allegations in other cases.

    • Warren Terra

      I take it you don’t take seriously the conflicts of interest involved when you have one side writing the contract that mandates arbitration, naming the firms that can provide arbitrators, and being a source of repeat business for those firms, while the other side just wants to purchase a good or service at the list price, or get a lousy job in the service industry?

      • Rat

        Sure, that’s a concern in theory, and the plaintiff’s lawyer and the arbitrators will be concerned about it too. Because picking the arbitrators is usually a collaborative process between the parties, each side’s lawyer researches the potential arbitrators in the pool and if you don’t like one (for whatever reason), you usually can “strike” them. Similarly, the arbitrators are usually required to make conflict of interest disclosures, and the parties can object based on the results. Your precise concern about a company being able to select some hack arbitrator who will automatically decide in the company’s favor isn’t a real world problem.

        • Warren Terra

          Sure, if the arbitrator is too obviously biased against the customer/employee they won’t get work. But: they know that they get their repeat business from the big company that wrote the contract that specified both arbitration and the specific arbitration firm, while they get no repeat business at all from the plaintiff and limited repeat business from the plaintiff’s attorney. The temptation to be extremely respectful of the company’s arguments will be difficult to escape.

          • Fearless Navigator of the New LGM Comment System

            Warren, do you have any “arbitration firms” in mind that are particularly problematic? Because I haven’t run across any, though that might be industry-specific. I will note that based on Hobby Lobby’s arbitration provision, it appears that they have AAA select arbitrators, and under AAA’s selection process, it’s very unlikely that any particular neutral will see much “repeat business” from a particular company. (Basically, AAA keeps a big list of neutrals and provides names selected at random to the parties, who are encouraged to agree on one and can strike ones that are unacceptable.) FINRA has a similar process. The insurance/reinsurance industry does as well, I believe.

            • Warren Terra

              I’m speaking purely on first principles here, no relevant experience or expertise.

          • Rat

            I understand what you’re saying, Warren, but it just doesn’t work like that at reputable places like AAA. The biggest employer in the biggest state doesn’t throw off enough arbitrations for “repeat business” to be a significant factor, and the pools of arbitrators are too large for it to matter even if it were otherwise. Plus, many of the arbitrators are former judges in quasi-retirement — if you try telling someone like that she became a corporate shill once she left the bench, she’d probably bop you in the nose.

            • MacK

              Rat – I cannot tell if you are being disingenuous or just obtuse. You must know that in labor law there are employee side law-firms, mostly small, and employer side firms, mostly-large (usually with more than just employment in their practices.) A large employer side law firm will have a lot of arbitrations in any given state – indeed they will do arbitrations in multiple states. That firm will be a source of a lot of repeat business for an arbitration organisation like AAA and they will have a lot of knowledge of individual arbitrators and the way that they tend to rule – and they will likely be the authors of many arbitration agreements. They know who is pro-employer and who is tough on employers. Even if a company they represent has a small number of arbitrations – they as a firm have a lot.

              Consider the tendency of international lawyers to avoid AAA for non-US companies – do you think that all comes from direct experience? Some does, but a lot is comparing notes with other lawyers who had similar experiences from half assed and xenophobic former state judges, who are biased towards the US party.

              • Rat

                There’s no reason to be hostile. You’re just wrong. The pool of arbitrators at places like AAA is so large that even international, employer-side law firms won’t have much institutional knowledge about the vast majority (if not all) of the arbitrators in the small pool that is offered to the parties in the first instance. Plus, even where there is institutional knowledge, it’s often useless: “Seemed fair.” “I liked him.”

        • “In theory”

          do you really have no knowledge of modern American versions of consumer relations and/or employee relations?

    • Sly

      Contrary to someone’s contention upthread, the corporate defendant doesn’t get to pick the judge — usually both sides “rank” potential arbitrators, including retired judges, according to their preferences and reach an agreement on who will hear the case.

      They do, however, get to pick the arbitrator, or define the range of choices that the employee has. Hobby Lobby’s employment contract specifies that either the American Arbitration Association or the Institute for Christian Conciliation (a Christian fundamentalist arbitration company… is anyone actually surprised that that’s a thing?) will appoint the arbitrator.

      • Rat

        It’s not uncommon for the company to pick the organization, such as AAA, but that’s different than picking the individual who will hear the case. (Some agreements probably do pick the individual, so I should have added another “usually” in the excerpt you quote above.) But the more control the company attempts to keep for itself in the agreement, the more likely it will be that a court won’t enforce it at all. (Allen’s lawyer chose not to argue that the agreement was too unfair to enforce.) I’ve never heard of “Institute for Christian Conciliation,” which sounds shady, but AAA is a legitimate organization, which wouldn’t go out of its way to help Hobby Lobby, and wouldn’t attempt to influence the arbitrator’s decision.

        • MacK

          AAA has a bad reputation these days with many lawyers. It may be “legitimate” but my perception is that it favours the party likely to bring repeat business.

          Here is a blunt question Rat – how do you know AAA is fair – it decisions are all confidential? How can you assess the fairness of its decision making?

          • Rat

            Just my personal experience. Of course, “AAA” doesn’t decide cases. The arbitrators do.

            • MacK

              But AAA has its arbitrator list – so they are who you are normally limited to, and my experience of who AAA picks to be on that list reflects the point I made.

    • MacK

      See my post below:

      Repeat business, especially with AAA is its vice. I actually advise (as do many lawyers of my acquaintance) companies from outside the US to refuse AAA in favour of say ICC because AAA seems biased in the direction of the most repeat business. I have seen some really bizarre AAA decisions and they are virtually unappealable.

      • Rat

        The idea of “repeat business” is pretty silly. Law firms aren’t monolithic entities; they’re composed of individual partners who make their own decisions about their own cases, which includes ranking arbitrators. There’s no “Great Oz” deciding to throw business to one arbitrator or another.

        • MacK

          Really – I have had multiple arbitrations in front of the same chairman – 3 at least.

    • MacK

      RAT – come-on you must know better than the “both side rank the judge” argument. The arbitrators offered by AAA come from a closed list – so you are ranking form the same list. The employee’s lawyer will have nearly no experience of the particular AAA arbitrators on offer, while the employer’s will have lots of experience of which is pro-employer, both from arbitrations for that client and because as an employer-side lawyer he/she or his/her firm will have run into this arbitrator before – or a client’s law department will have.

      The idea is BS – you know it and I know it – in fact any lawyer who has ever picked or ranked an arbitrator knows it. If they did not cast around for available intelligence on potential arbitrators they would be incompetent – it is just that the employer side labour lawyer has much more available information.

      • Barry_D

        I would have said ‘flat out f*cking lie’, but I agree with your point.

        • Rat

          This comment was beneath you, Barry_D. Disappointing.

      • Rat

        Again, this just isn’t true. If there’s no agreement after the first list, AAA will provide additional arbitrators. Large law firms aren’t as omnicient as you think they are. You’re also vastly overestimating (i.e., assuming the existence of) strongly biased arbitrators.

        • MacK

          Really – you don’t check out arbitrators? I do, everyone I know does – we check out in our firm, we call a few friends in other law firms about people on the list -what do you know about this guy – this is standard practice. Indeed I am astonished at any lawyer not doing this. Moreover, I cannot think of any arbitration where we agreed to an “unknown quantity” as an arbitrator – we never would.

  • JR

    Obviously Hobby Lobby is totally immoral, without ethics, and should be … I’m speechless. If you know me, you know this is an almost unprecedented condition.

    They should be deleted from reality. There, not so speechless after all.

    And that old woman, Mrs Green, who spoke briefly in an online video, while her husband grinned and silently nodded as she ranted, vile, ugly, witch. In my opinion, of course, which may be swayed by the bigotry evident in her attitudes. Baby Jesus would not be pleased, will not be pleased when / if they meet. He preaches love, and she practices hate.

    • jim, some guy in iowa

      there are a lot of people who shouldn’t be nearly as eager to meet jesus as they seem to be

      • MAJeff

        Since they think heaven’s so fucking awesome, I wish they were in more of a hurry.

  • DrDick

    As usual, they prove to be only pro-fetal “life”.

    • Aimai

      Pro fetus–anti baby.

      • pro-…umm, nothing in particular, because they are perfectly OK with rich women having those fetuses terminated- and anti– well, pretty much everybody that’s not part of the rich or of their neighbors.

        Admittedly, less concise than your version.

  • DrDick

    Exactly. Also anti-mother.

    • Aimai

      I didn’t bother saying anti mother because I don’t even think the mother factors in.

  • MAJeff

    I remember this part of the Gospels:
    “When I was pregnant, you shunned me; when I was unemployed, you kicked me. These things you did in the name of my father, and for that you will sit on my face in heaven.”

    • MacK

      surely “your face will be my seat in heaven”

  • MacK

    I do arbitration (in fact I am a trained arbitrator) and I a regularly counsel in big-ticket arbitration. However, there is an essential difference between the type of arbitration. The first thing to understand is that arbitration is private commercial justice – arbitration organisations are paid to conduct it, the arbitrators are paid hourly fees for their participation. This can create some very problematic incentives

    In intra-corporate arbitration, the arbitration clause has usually been agreed in a contract by both companies. The result is that the arbitration organisation has generallyno interest in being biased in one company’s favour or the other. I say generally, because – particularly with the AAA I have seen clear bias against foreign parties, either driven by their un-reelected state judge type arbitrators, or the sense that AAA (American Arbitration Association) is selected by US companies predominantly and the foreign company forced to take it – in any event I always tell a non-US company to object to AAA in a contract, from experience.

    What is of much more concern is standard arbitration clauses between large corporations and individuals. To understand the concern you have to see that the arbitration organisation and the arbitrators have a huge conflict of interest. They are paid, generally by the corporation to conduct arbitrations – that corporation, be it an employer of thousands of employees, a credit card issuer, a stockbrokerage, etc. will have many cases every year – tens, hundreds, maybe thousands. The arbitration of those cases can add up to a very large proportion of the organisations annual fees and keep the arbitrators busy, billing by the hour. But there are lots of competing arbitration organisations – does the arbitrator want to run the risk that a tough-but-fair decision will cause the corporation to shift its arbitration clauses to another arbitration organisation?

    This problem is compounded by the fact that arbitration is confidential – so no one can see what sort of awards say the AAA is issuing, are they sensible and supported by the evidence, or not (anecdotally what I hear, from business lawyers (GCs) is not), but under the Federal Arbitration Act appeal and review is virtually impossible.

    While I don’t object to arbitration in principle for employment disputes (I have done it in mandatory arbitration jurisdictions, for example in front of the UK’s ACAS (some of whose arbitrators are bizarrely pro-employee (I had one object to a firing after formal discipline of one who hacked a software company’s most important source code to send to a competitor and also copied other employees personal files from their computers), I think steps need to be taken to ensure that the arbitration process is fair and the arbitrators do not have a built in pro-employer bias.

    • Barry_D

      Thanks for posting this.

    • Rat

      But there are lots of competing arbitration organisations – does the arbitrator want to run the risk that a tough-but-fair decision will cause the corporation to shift its arbitration clauses to another arbitration organisation?

      There is literally no large corporation in the entire country that would incur the cost and other burden of rolling out new arbitration agreements in these circumstances. Plus, the arbitrator (i.e., the individual deciding the case) wouldn’t care about that risk. She probably gets a case or two a year from any one firm. You have no idea what you’re talking about.

      • MacK

        Really! It is not a large cost an burden – you just name a new arbitration organisation in all new contracts and when all contracts are amended – no big “roll-out” and very feasible in the US where, with pretty well no exceptions – employment is “at will.”

        Again here is the problem – you Rat “have no idea what you are talking about” because you can have no idea what you are talking about.

        I am going to ask you some very simple questions:

        1. Is arbitration confidential?

        2. Does the FAA make judicial review of arbitration very very rare and very difficult?

        3. How many arbitrations does a company like Walmart have every year? Do you even know?

        4. Do arbitrations result in a lower win rate for employees and smaller awards when they do win (the evidence to the extent that there is any is yes – in California ( the employee win rate amongst AAA cases was 21.4%, lower than employee win rates reported in employment litigation trials and the the median award amount was $36,500 and the mean was $109,858, both of which are substantially lower than award amounts reported in court litigation) – how do you explain away that discrepancy?? The AAA discrepancy? What drives that?

        In short, you are vociferously defending arbitration in employment cases while misrepresenting what you know and how you know it – or – given your apparent belief that people don’t check arbitrators reputations – you are simply incompetent.

        Meanwhile, instead of spouting ignorant bullshit, why don’t you read for example: An Empirical Study of Employment Arbitration: Case Outcomes and Processes, Alexander Colvin and educate yourself a little. As he puts it:

        The results provide strong evidence of a repeat employer effect in which employee win rates and award amounts are significantly lower where the employer is involved in multiple arbitration cases, which could be explained by various advantages accruing to larger organizations with greater resources and expertise in dispute resolution procedures. The results also indicate the existence of a significant repeat employer-arbitrator pairing effect in which employees on average have lower win rates and receive smaller damage awards where the same arbitrator is involved in more than one case with the same employer, a finding supporting some of the fairness criticisms directed at mandatory employment arbitration.

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