Bill aims at companies’ ‘silencing tactics’
Agreements that waive employees’ rights to file lawsuits alleging discrimination and harassment — or to speak out against their accusers — would be prohibited under a bill on Beacon Hill, as new evidence shows they may be discouraging victims from coming forward.
“These are silencing tactics,” state Rep. Diana DiZoglio (DMethuen) said. “They have no place in state government and they have no place in the commonwealth in the public sector or private sector. We as a legislative body need to take the lead on this is if we expect things to change.”
DiZoglio’s bill would bar nondisclosure agreements and forced arbitration agreements related to claims of discrimination, harassment or retaliation.
Critics argue nondisclosure agreements — such as the ones attached to big-money settlements involving Harvey Weinstein, Roger Ailes and Bill O’Reilly — only keep the allegations secret and allow future harassment.
“We’re sending a message to our communities that if you have enough money and power, you can get away with these misdeeds,” DiZoglio said.
Also at issue are forced arbitration clauses in employee contracts, essentially requiring workers to give up their rights to sue in court over issues such as discrimination, in favor of a private arbitration process.
Those agreements aren’t just preventing lawsuits, they may actually be thwarting employees from pursuing complaints at all, according to one study.
Many employees are likely to face a process that’s stacked against them — high arbitrator fees, a biased arbitrator pool or limits to the damages they can recover, wrote Cynthia Estlund, a law professor at the New York University School of Law, in the North Carolina Law Review earlier this month.
As a result, many employees never take their cases to arbitration at all — they disappear into what Estlund calls “the black hole of mandatory arbitration.”
If agreement-bound employees did arbitrate their cases as willingly as unbound employees are to litigate theirs, there would be between 320,000 and 727,000 more claims in arbitration, Estlund estimated.
Instead, she estimates just 5,126 claims were filed in arbitration in 2016.
“It’s not an easy claim to win wherever you are,” Estlund told the Herald. “But if you have some outrageous facts and you’re in court and there’s a jury, there’s a chance of a big splash. There’s a chance of a big verdict and big scandal and that’s something that’s largely swallowed up in arbitration.”
But prohibiting the arbitration agreements would limit the options both sides have for dealing with conflict in the workplace and drag out disputes, according to testimony from the Associated Industries of Massachusetts, which opposes the Beacon Hill bill.
“Associated Industries of Massachusetts supports the right of employers to use arbitration and other non-judicial remedies to address worker claims in a timely manner,” said Christopher Geehern, the organization’s executive vice president, in a statement. “These remedies relieve an overburdened court system and allow employers and employees to resolve disputes in a way that is fair to both.”
AIM declined a request for an interview.
The bill also would bar companies from firing or failing to hire employees who refuse to sign such waivers.
After a hearing last month, the bill remains in the Joint Committee on Labor and Workforce Development.
Meanwhile, a divided U.S. Supreme Court is scheduled to issue a ruling that could determine the future of forced arbitration agreements. It heard arguments last fall on three cases involving Epic Systems Corp., Ernst & Young and Murphy Oil USA.