TorteDeForm

Kia Franklin

Signing Away Your Rights— No Signature Required?

I've written, perhaps ad nauseam, about the perils of pre-dispute binding mandatory arbitration clauses. For the most part we've covered the dangers of a) unwittingly signing them, like when you purchase a cell phone or get a new credit card; or b) signing them in a context where you feel you have no real choice in the matter, such as in employment contracts.

Well, if this isn't a new level of low.

Stephanie Mencimer, a past TortDeform contributor and a columnist for Mother Jones, uncovers a new layer of arbitration atrocities. She writes about the case of a health care employee named Fonza Luke who refused to sign an arbitration agreement at work, an act which brought her under heightened scrutiny at work and eventually resulted in her being discriminated against. But, as Mencimer describes, Ms. Luke couldn't take her discrimination claim to court because her employer argued that simply showing up to work each day was tantamount to her agreement to arbitrate any disputes. That is, even though she actively refused to sign the arbitration agreement, she was still subject to it. And a federal judge agreed!

This case reveals the ridiculously twisted "logic" of the claim that banning binding mandatory arbitration clauses would be bad for regular people because it would take away our right to choose arbitration in exchange for cheaper goods and services. But if one's "choice" must be between remaining employed or losing one's right to take a discrimination claim to court, then this is no substantive choice at all. I wonder what tort deformers have to say about imposing binding mandatory arbitration on people who affirmatively oppose it. Well, I can guess.

Read the full MoJo article here.

Kia Franklin: Author Bio | Other Posts
Posted at 11:07 AM, Mar 10, 2008 in Arbitration
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Comments

You mean four federal judges agreed, including two Clinton appointees and one Carter appointee. Which suggests that perhaps Mencimer is exaggerating.

Posted by: Ted | March 11, 2008 11:09 AM

Exaggerating by recalling the facts? I don't think so.

All this means is that four federal judges have bought into the notion that you can be harmed by flagrantly discriminatory or otherwise illegal behavior and still have absolutely no legal recourse. Your legal rights can be taken away even if you've taken all possible steps (besides quitting your job, I guess) to defend your right to contractual consent.

Posted by: Kia | March 11, 2008 4:41 PM

Kia:

For one, being fired for insubordination isn't illegal, nor is it discriminatory. It's harsh, yes, but not illegal.

For another, your second sentence doesn't make legal sense. You can't simultaneously assent to a contract's terms and at the same time "defend your right to contractual consent." (Query, could Baptist "defend their right to contractual consent" and refuse to pay for her work since contractual rights are symmetrical?) In contract law, there's acceptance by performance. Once you're cognizant of the terms of a contract that invites performance by acceptance, you're bound by those terms upon performance.

Luke was presented with the terms of the contract and was told that she would be bound by those terms is she wanted to continue to work there. She continued to work there. She was bound by the contract's terms. Post hoc ergo prompter hoc.

Posted by: Lawyer who knows contract law and reads cases | March 11, 2008 9:39 PM

And to add to Lawyer with the long name's comments, the claim that Luke "ha[d] absolutely no legal recourse" is, of course, wrong. Arbitration is legal recourse. I understand why trial lawyers hate arbitration so much, but that doesn't mean they can get away with pretending that arbitration is the same as nothing.

Luke had the opportunity to make her case. The arbitrator didn't buy it. There's no injustice there; she just lost her case.

Posted by: David Nieporent | March 12, 2008 5:04 PM

Let me rephrase my entire post in two sentences: "Just because it's technically legal, it don't make it right. And I didn't learn that in law school."

Arbitration, while legal, **is** very often substantively equivalent to nothing, because it doesn't have the protections our public courts offer. In fact it's not just nothing, it's worse than nothing when people have to pay and still lose their claims and have no right to appeal and often no reasoned opinion upon which to base an appeal anyway. They might as well just not ever bring the claim in the first place.

"Lawyerwho...": pardon my ignorance. I am a lowly recent law grad with much to learn. What say you about the issue of whether the discipline she received for so-called insurbordination could have been decided upon in a discriminatory fashion (because of her race, gender, age, etc.), as demonstrated by the fact that others who more frequently violated the leave policy were not disciplined that way? Would this type of discrimination be illegal?

For a non-lawyer who is presented with a contract, asked to sign it, and upon refusal to sign it repeatedly asked again and again to please sign it, it sure would look like she never consented to the terms of this agreement. But in terms of after it was explained that by showing up for work everyday this constituted agreemt, I would have to wonder what this means in terms of a person's real life. Was she supposed to say, "Gee, let me quit my job where I've built my career and professional reputation and just start afresh, purely on principal and by the sheer chance that one day I could maybe be discriminated against"?

The employer has nothing to lose, besides its employees, which apparently are expendable cogs. They can say give up your rights or clean out your desk.

Posted by: Kia | March 12, 2008 6:15 PM

I'm sure what's good for the goose is good for the gander. Which means that, under this rationale, where clear signs of rejection mean nothing and any kind of performance is unqualified acceptance, an employee can walk into their supervisor's office, say "I get a 50% raise tomorrow, unless you fire me, in writing, in triplicate, on papyrus." And it would be binding.

I don't mean mean to so glib and quick to run to the extremes, but when some one says "Luke was presented with the terms of the contract and was told that she would be bound by those terms is she wanted to continue to work there. She continued to work there. She was bound by the contract's terms. Post hoc ergo prompter hoc" they are ignoring the basic aspect of contract law that allows for counteroffers in addition to acceptance and rejection.

Posted by: 2L in Denver | March 12, 2008 7:07 PM

2L:

Where there's acceptance by performance, which was involved in this case, there's no "clear sign of rejection." In fact, for your exams, you'll note that "acceptance by performance" is actually the very OPPOSITE of rejection. Hence the "acceptance" part. It's not just a clever name. That's, like, the whole point to this story. You can't simultaneously accept and reject a contract.

Your papyrus example is faulty because there's no consideration, but you're on the right track. Any employee can state to his of her employer "IF I do any more work for you, THEN you must agree to give me a 50% raise, and you must submit any claim to arbitration." Should the employer then agree or actually give him or her work to do, it's binding. Two-way street.

And, on a side note, I'm not sure what you're reading in Denver that says that performance under a unilateral contract can be a counter-offer...If her working was simply a counter-offer then Baptist wouldn't have had to pay her for it, would they? (Should probably forget that one for the multistate...)

Posted by: Lawyer | March 12, 2008 7:46 PM

I hear about the courts ruling on arbitration agreements and then stating the arbitration decisions can be illegal or immoral and still stand. Yet arbitration agreements by their nation dismiss all court decisions and rule that they are not valid in arbitration agreements and can not be used by an aggrieved employee.

I refused to sign an application agreement which was just an arbitration agreement disguised as an enrollment form with Southeastern Staffing, Inc. in Tampa, Florida.

My company was technically firing me and turning my employment over the staffing company. The application form required me to sign away my Federal Constitution rights forever that gave me any recourse to sue my employer, or anyone else connected with them, for the rest of my life.

By signing this document, I would be giving up my rights under the 3rd, 4th, 6th, and 14th amendments of the United States Constitution.

If this type of arbitration agreement is legal under the law, then we need to remove all of the courts that believe that it is legal for an employer to force us to sign away our constitutional rights, or fire us.

Our forefathers fought for these rights and so will I.

Posted by: Kenneth M. Kiler | April 30, 2008 8:15 PM

Yet arbitration agreements by their nation dismiss all court decisions and rule that they are not valid in arbitration agreements and can not be used by an aggrieved employee.

What is that supposed to mean? Is that in English?

By signing this document, I would be giving up my rights under the 3rd, 4th, 6th, and 14th amendments of the United States Constitution.

You were agreeing to have soldiers quartered in your home?


Posted by: Elliot | May 1, 2008 2:30 PM

Reply to Elliot:

I am sorry that you don't understand the English language. Perhaps you should take an English course in the school of your choice.

Since you haven't and probably never will, read the document I was asked to sign, your statement is N/A. I just look at it as a typo. It is nice to know that you worry about these things.

I would have answered you earlier, but I was in the hospital having my heart cut up.

Posted by: Kenneth M. Kiler | April 24, 2009 11:52 PM

Kia,

By the way, that lawyer doesn't know what he is talking about. I won my case against my employer over the contract dispute. I was let go from my job because I didn't sign the agreement, but the State of Florida determined that I was well within my rights by refusing to sign the arbitration agreement. They found that my employer had no right to force me to sign an agreement that would take away my constitutional rights.

I also disagree with the lawyer about his statement about refusing to sign and then continuing to work is a sign of acceptance of an agreement. It's more like blackmail. It's criminal to use legal arguments like that, but they always lose when the employee has a better attorney.

Posted by: KKiler | April 25, 2009 12:19 AM