5 min read

A group of Googlers launched a public awareness social media campaign from 9 AM to 6 PM EST yesterday. The group, called, ‘Googlers for ending forced arbitration’ shared information about arbitration on their Twitter and Instagram accounts throughout the day.

The group tweeted out yesterday, as part of the campaign, that in surveying employees of 30+ tech companies and 10+ common Temp/Contractor suppliers in the industry, none of them could meet the three primary criteria needed for a transparent workplace. The three basic criteria include:

  • optional arbitration policy for all employees and for all forms of discrimination (including contractors/temps),
  • no class action waivers, and no gag rule that keeps arbitration hearings proceedings confidential.

The group shared some hard facts about Arbitration and also busted myths regarding the same. Let’s have a look at some of the key highlights from yesterday’s campaign.

At least 60 million Americans are forced to use arbitration

The group states that the implementation of forced arbitration policy has grown significantly in the past seven years. Over 65% of the companies consisting of 1,000 or more employees, now have mandatory arbitration procedures. Employees don’t have an option to take their employers to court in cases of harassment or discrimination. People of colour and women are often the ones who get affected the most by this practice.

          How employers use forced Arbitration

Forced arbitration is extremely unfair

Arbitration firms that are hired by the companies usually always favour the companies over its employees. This is due to the fear of being rejected the next time by an employer lest the arbitration firm decides to favour the employee. The group states that employees are 1.7 times more likely to win in Federal courts and 2.6 times more likely to win in state courts than in arbitration.  

There are no public filings of the complaint details, meaning that the company won’t have anyone to answer to regarding the issues within the organization. The company can also limit its obligation when it comes to disclosing the evidence that you need to prove your case.  

Arbitration hearings happen behind closed doors within a company

When it comes to arbitration hearings, it’s just an employee and their lawyer, other party and their lawyer, along with a panel of one to three arbitrators. Each party gets to pick one arbitrator each, who is also hired by your employers. However, there’s usually only a single arbitrator panel involved as three-arbitrator panel costs five times more than a single arbitrator panel, as per the American Arbitration Association.

Forced Arbitration requires employees to sign away their right to class action lawsuits at the start of the employment itself

The group states that irrespective of having legal disputes or not, forced arbitration bans employees from coming together as a group in case of arbitration as well as in case of class action lawsuits. Most employers also practice “gag rule” which restricts the employee to even talk about their experience with the arbitration policy.

There are certain companies that do give you an option to opt out of forced arbitration using an opt-out form but comes with a time constraint depending on your agreement with that company.

For instance, companies such as Twitter, Facebook, and Adecco give their employees a chance to opt out of forced arbitration.

                                                 Arbitration opt-out option

JAMS and AAA are among the top arbitration organizations used by major tech giants

JAMS, Judicial Arbitration and Mediation Services, is a private company that is used by employers like Google, Airbnb, Uber, Tesla, and VMware. JAMS does not publicly disclose the diversity of its arbitrators. Similarly, AAA, America Arbitration Association, is a non-profit organization where usually retired judges or lawyers serve as arbitrators. Arbitrators in AAA have an overall composition of 24% women and minorities. AAA is one of the largest arbitration organizations used by companies such as Facebook, Lyft, Oracle, Samsung, and Two Sigma.  

Katherine Stone, a professor from UCLA law school, states that the procedure followed by these arbitration firms don’t allow much discovery. What this means is that these firms don’t usually permit depositions or various kinds of document exchange before the hearing. “So, the worker goes into the hearing…armed with nothing, other than their own individual grievances, their own individual complaints, and their own individual experience. They can’t learn about the experience of others,” says Stone.

Female workers and African-American workers are most likely to suffer from forced arbitration

58% female workers and 59% African American workers face mandatory arbitration depending on the workgroups. For instance, in the construction industry, which is a highly male-dominated industry, the imposition of forced arbitration is at the lowest rate. But, in the education and health industries, which has the majority of the female workforce, the imposition rate of forced arbitration is high.

                                Forced Arbitration rate among different workgroups

Supreme Court has gradually allowed companies to expand arbitration to employees & consumers

The group states that the 1925 Federal Arbitration Act (FAA) had legalized arbitration between shipping companies in cases of settling commercial disputes. The supreme court, however, expanded this practice of arbitration to companies too.

                                                  Supreme court decisions

Apart from sharing these facts, the group also shed insight on dos and don’t that employees should follow under forced arbitration clauses.

                                                     Dos and Dont’s

The social media campaign by Googlers for forced arbitration represents an upsurge in the strength and courage among the employees within the tech industry as not just the Google employees but also employees from different tech companies shared their experience regarding forced arbitration. The group had researched academic institutions, labour attorneys, advocacy groups, etc, and the contracts of around 30 major tech companies, as a part of the campaign.

To follow all the highlights from the campaign, follow the End Forced Arbitration Twitter account.

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