Greetings and salutations, loyal .... um... fan. It has been a while* since I have posted anything law-like. So, I thought I’d spend a few minutes today talking about the fun and games involved when you sue ... your employer. Wait, what? YOUR EMPLOYER IS THE SOURCE OF LIGHT AND JOY. DO NOT ANGER MOTHER. Ahem.
Sorry, where was I? So, let’s say you have a particularly bad case of the Mondays, and you were thinking, “Hey, you know what? To heck with da man. Ima bring this lawsuit!” We’ve all been there! Well, let’s talk about some of the common issues, known, unknown, and Rumsfeldian, that trap the unwary. Almost as if employers, who generally have money, have used that money to pay the people that write laws the make it harder for you to sue them.
*For definitions of "a while" that are longer than "one minute," and shorter than, "It's been a minute."
Disclaimer: I am giving a brief overview of a lot of different topics in the following posts. None of this constitutes any sort of legal advice. In addition, if you’ve read anything I’ve written before, you know that the law is complicated, we have all sorts of differences between jurisdictions, and that the exceptions have exceptions. Also? I will make broad generalizations solely for the purpose of bad jokes and so I can work in something about tacos, bards, or Nickelback. I am as serious as a dog star; do not rely on the following in any way, shape, or form.
1. I was injured at work, and ...
So sorry. But you’re out of luck! A long, long time ago, it was nearly impossible to sue anybody for anything. You’d have your all limbs severed because your employer was using a farm thresher to clean the floors, and some judge with a beard (judges were required to have beards back then) would say something like, “Because you knew that threshers existed at your workplace, you cannot sue your employer, and must, in fact, pay your employer to clean up that mess you made by bleeding all over the floor. Now, quit yer whining about your arms and legs and get out!”
Anyway, there was a revolution in American in the early part of the 20th Century as we adopted Worker’s Compensation laws! YAY MURIKUH! Now, if you are injured on the job, you should be covered. But wait ... didn't I say that employers have to get a little somethin' somethin'? That's right, the employer benefits as well- because the implementation of these laws means that you cannot sue your employer for accidents (negligence) that occur on the job. The usual way this tradeoff is considered beneficial for many people that suffer minor injures at work, or injuries that require some care for a period of time- after all, they don’t have to go to court! However, you might want to look at, say, the standard schedule of payment for a loss of a finger. That’s right- states have standard schedules to pay you for the loss of various body parts (and for what it’s worth, the thumb is worth the most, the pinkie the least... BECAUSE THE THUMB IS KING OF THE HAND AND ALL OTHER FINGERS MUST BOW BEFORE IT). In other words, the employer is protected from lawsuits. Weird how that works, isn’t it?
2. So I signed a bunch of stuff when I started ...
Don’t we all! But ... did you read any of it? I hope you did! Not that it matters- after all, if we want the job, we sign the papers, amirite? Increasingly, however, with all of that introductory paperwork is an Arbitration agreement. Over the past few decades, but arguably with a vengeance since 2011 (AT&T Mobility LLC v. Concepcion) the Supreme Court has been giving the extra juice to arbitration clauses. There is a long story behind this, which is fascinating! But the short story is this- employers can, when they hire you, have you sign an agreement before you start working. And that agreement means that you can’t go to court over any of the standard employment claims people have**- hostile work environment, discrimination, unpaid wages or overtime, and so on. It also means you can’t join with other employees who suffered in the same way (it most likely includes a waiver of class action). Blah blah blah, what does all of this mean?
So, let’s discuss the good things about arbitration- and there are good things! It is faster, less formal, cheaper, and more decisive than going to Court. You don’t have to worry about endless appeals. Things will get done, and get done reasonably quickly. Many arbitrators are quite excellent. But there has to be a downside, right? Why are employers so gosh-darn eager to go to arbitration?
Because it sucks for the employees, that’s why. Litigation is often about leverage. Employers tend to be in a better position, financially, than employees; this is why Plaintiff’s attorneys in this area work on contingency (or recover based on a statute that provides for their fees). In other words, the employee isn’t paying for their attorney. An arbitration agreement is a barrier to entry for the employee; many Plaintiff’s attorneys don’t want to bother because arbitration isn’t as lucrative or certain as court cases, and because they will lack leverage to settle the case. This isn’t always true- excellent cases with the potential of large recovery, or a well-heeled client who will pay will always attract counsel, but it's true in enough cases. And it is also true that in certain areas, repeat players (such as unions) will prefer arbitration agreements, as it gives them a quick and easy remedy. But for the most part, arbitration agreements tend to deter claims from even being filed, due to fewer attorneys willing to take them.
The next issue is, of course, leverage again. Arbitration with a class action waiver means that employees cannot aggregate their claims together, which makes a huge difference.
How did we agree to sue our employer? All at once!
And how did we sue our employer? One at a time.
Moreover, while arbitration is less costly for the employee, the streamlined and less formal nature make it much less costly for the employer, so there is very little pressure on the employer to settle just to avoid the cost of litigation. In addition, while the courts are open to the public and filings are public records ... arbitration isn’t. So for cases where an employee might be able to count on the employer’s shame mattering (not wanting these facts in the public record), guess what? Arbitration effectively can sweep a great deal of that under the rug. Finally, and perhaps most importantly, studies consistently show that arbitration generally provides for lower amounts that a jury verdict or a bench trial. Which is, again, to the benefit of the employer and means less leverage for settlement.
Now, I don’t want to paint this as “arbitration bad!” Arbitration provides an amazing, wonderful, cheap, and efficient alternative to court. I think arbitration can be great. But ... arbitration should be an alternative to court that the parties agreed to. Not a random piece of paper that a new employee signs, without really looking at it, along with 20 other forms on their first day of work.
Enough about that. So there was a very brief overview of two big issues- worker's compensation laws, and arbitration clauses. If people are interested, I will add a post next week discussing more specific work-related issues, given that we often have discussions on EnWorld about the TTRPG industry and the use of independent contractors.
**In 2021, a law was passed that amended the Federal Arbitration Act to preclude mandatory arbitration of sexual harassment and sexual assault claims.
Sorry, where was I? So, let’s say you have a particularly bad case of the Mondays, and you were thinking, “Hey, you know what? To heck with da man. Ima bring this lawsuit!” We’ve all been there! Well, let’s talk about some of the common issues, known, unknown, and Rumsfeldian, that trap the unwary. Almost as if employers, who generally have money, have used that money to pay the people that write laws the make it harder for you to sue them.
*For definitions of "a while" that are longer than "one minute," and shorter than, "It's been a minute."
Disclaimer: I am giving a brief overview of a lot of different topics in the following posts. None of this constitutes any sort of legal advice. In addition, if you’ve read anything I’ve written before, you know that the law is complicated, we have all sorts of differences between jurisdictions, and that the exceptions have exceptions. Also? I will make broad generalizations solely for the purpose of bad jokes and so I can work in something about tacos, bards, or Nickelback. I am as serious as a dog star; do not rely on the following in any way, shape, or form.
1. I was injured at work, and ...
So sorry. But you’re out of luck! A long, long time ago, it was nearly impossible to sue anybody for anything. You’d have your all limbs severed because your employer was using a farm thresher to clean the floors, and some judge with a beard (judges were required to have beards back then) would say something like, “Because you knew that threshers existed at your workplace, you cannot sue your employer, and must, in fact, pay your employer to clean up that mess you made by bleeding all over the floor. Now, quit yer whining about your arms and legs and get out!”
Anyway, there was a revolution in American in the early part of the 20th Century as we adopted Worker’s Compensation laws! YAY MURIKUH! Now, if you are injured on the job, you should be covered. But wait ... didn't I say that employers have to get a little somethin' somethin'? That's right, the employer benefits as well- because the implementation of these laws means that you cannot sue your employer for accidents (negligence) that occur on the job. The usual way this tradeoff is considered beneficial for many people that suffer minor injures at work, or injuries that require some care for a period of time- after all, they don’t have to go to court! However, you might want to look at, say, the standard schedule of payment for a loss of a finger. That’s right- states have standard schedules to pay you for the loss of various body parts (and for what it’s worth, the thumb is worth the most, the pinkie the least... BECAUSE THE THUMB IS KING OF THE HAND AND ALL OTHER FINGERS MUST BOW BEFORE IT). In other words, the employer is protected from lawsuits. Weird how that works, isn’t it?
2. So I signed a bunch of stuff when I started ...
Don’t we all! But ... did you read any of it? I hope you did! Not that it matters- after all, if we want the job, we sign the papers, amirite? Increasingly, however, with all of that introductory paperwork is an Arbitration agreement. Over the past few decades, but arguably with a vengeance since 2011 (AT&T Mobility LLC v. Concepcion) the Supreme Court has been giving the extra juice to arbitration clauses. There is a long story behind this, which is fascinating! But the short story is this- employers can, when they hire you, have you sign an agreement before you start working. And that agreement means that you can’t go to court over any of the standard employment claims people have**- hostile work environment, discrimination, unpaid wages or overtime, and so on. It also means you can’t join with other employees who suffered in the same way (it most likely includes a waiver of class action). Blah blah blah, what does all of this mean?
So, let’s discuss the good things about arbitration- and there are good things! It is faster, less formal, cheaper, and more decisive than going to Court. You don’t have to worry about endless appeals. Things will get done, and get done reasonably quickly. Many arbitrators are quite excellent. But there has to be a downside, right? Why are employers so gosh-darn eager to go to arbitration?
Because it sucks for the employees, that’s why. Litigation is often about leverage. Employers tend to be in a better position, financially, than employees; this is why Plaintiff’s attorneys in this area work on contingency (or recover based on a statute that provides for their fees). In other words, the employee isn’t paying for their attorney. An arbitration agreement is a barrier to entry for the employee; many Plaintiff’s attorneys don’t want to bother because arbitration isn’t as lucrative or certain as court cases, and because they will lack leverage to settle the case. This isn’t always true- excellent cases with the potential of large recovery, or a well-heeled client who will pay will always attract counsel, but it's true in enough cases. And it is also true that in certain areas, repeat players (such as unions) will prefer arbitration agreements, as it gives them a quick and easy remedy. But for the most part, arbitration agreements tend to deter claims from even being filed, due to fewer attorneys willing to take them.
The next issue is, of course, leverage again. Arbitration with a class action waiver means that employees cannot aggregate their claims together, which makes a huge difference.
How did we agree to sue our employer? All at once!
And how did we sue our employer? One at a time.
Moreover, while arbitration is less costly for the employee, the streamlined and less formal nature make it much less costly for the employer, so there is very little pressure on the employer to settle just to avoid the cost of litigation. In addition, while the courts are open to the public and filings are public records ... arbitration isn’t. So for cases where an employee might be able to count on the employer’s shame mattering (not wanting these facts in the public record), guess what? Arbitration effectively can sweep a great deal of that under the rug. Finally, and perhaps most importantly, studies consistently show that arbitration generally provides for lower amounts that a jury verdict or a bench trial. Which is, again, to the benefit of the employer and means less leverage for settlement.
Now, I don’t want to paint this as “arbitration bad!” Arbitration provides an amazing, wonderful, cheap, and efficient alternative to court. I think arbitration can be great. But ... arbitration should be an alternative to court that the parties agreed to. Not a random piece of paper that a new employee signs, without really looking at it, along with 20 other forms on their first day of work.
Enough about that. So there was a very brief overview of two big issues- worker's compensation laws, and arbitration clauses. If people are interested, I will add a post next week discussing more specific work-related issues, given that we often have discussions on EnWorld about the TTRPG industry and the use of independent contractors.
**In 2021, a law was passed that amended the Federal Arbitration Act to preclude mandatory arbitration of sexual harassment and sexual assault claims.
