Working people should not have to sign away their right to justice

On Labor Day, we celebrate the long, ongoing fight for justice in the American workplace. It is the perfect time to end a growing injustice taking place there: forced arbitration.

Forced arbitration is the practice by which employers can require employees to waive their right to seek justice in court. As a result, people lose the right to file lawsuits as individuals or as part of a class action. They lose the ability to hold abusive institutions accountable in an open and impartial forum. And often, they just lose.

A 2011 study from Cornell University found “arbitration outcomes are generally less favorable to employees than those from employment litigation,” and workers’ winnings are “substantially lower than award amounts reported in employment litigation.”

And with the secrecy of arbitration, authorities lose the ability to uncover wrongdoing.

Yet, multiple conservative U.S. Supreme Courts have enabled forced arbitration to ensnare half of all nonunionized workers at U.S. companies. Today, 60 million people, according to the Economic Policy Institute (EPI), have lost their right to justice.

Navy reservist Kevin Ziober did. He testified to the U.S. Senate’s Judiciary Committee in April that the day before he was to leave for a 12month deployment to Afghanistan, his employer threw him a goodbye party. And then, they fired him. Kevin believed the dismissal to be a violation of federal law, which protects the employment of deployed individuals, but his legal options were limited. The employer had forced him to sign an arbitration agreement.

“Almost seven years later, in large part because of forced arbitration, I am still fighting to enforce my rights and seek justice,” Kevin said. “Sadly, my story is not unique. It happens every day across America …”

I believe the U.S. Congress must end the coercive and pernicious practice of forced arbitration.

I am proud to be an original cosponsor of U.S. Rep. Hank Johnson’s and U.S. Sen. Richard Blumenthal’s Forced Arbitration Injustice Repeal, or FAIR Act. It would prohibit a forced arbitration agreement from being valid or enforceable if it requires arbitration of an employment, consumer, antitrust, or civil rights dispute.

This can be an area of bipartisan action. It has been. In 2018, attorneys general from every U.S. state and territory — Democratic and Republican — urged the Congress to end forced arbitration for survivors of sexual assault. They said that those individuals “… should not be constrained to pursue relief from decision makers who are not trained as judges, are not qualified to act as courts of law, and are not positioned to ensure that such victims are accorded both procedural and substantive due process.”

But it is not just sexual assault. No worker should have to accept secondrate justice.

This Labor Day, I believe the best way for the Congress to celebrate is to pass the FAIR Act to end forced arbitration. What better way to honor the united efforts for justice in the American workplace than by ensuring that no working person has to sign away their right to justice again.