Today’s News & Commentary — November 3, 2015

Published November 3rd, 2015 -  - 11.03.153


Frequent readers of OnLabor are familiar with the problem that arbitration clauses pose for the vindication of labor rights.  Over the weekend, the New York Times ran a two-part analysis of the effects of widespread arbitration clauses on the American justice system (Part I; Part II).  The article highlighted statements Judge Berle M. Schiller made criticizing the Supreme Court’s broad interpretation of the Federal Arbitration Act in an FLSA class-action case brought by an Applebee’s employee who was subject to an arbitration clause.  “To suggest that he had bargaining power because he could wait tables elsewhere ignores reality,” Judge Schiller wrote. He said the workers had to “chew on a distasteful dilemma” of whether to “give up certain rights or give up the job,” and called the current legal rules “lamentable” before enforcing the arbitration clause.

According to Part II, “more than 30 arbitrators said in interviews that the pressure to rule for the companies that give them business was real.”  The article related the story of Stefan M. Mason, an arbitrator who ruled against an employer in a $1.7 million discrimination suit.  After the suit, Mason was never hired to here an employment matter again.  In the article, Elizabeth Bartholet noted the ethical pressures that arbitrators sometimes face.  She recalled overhearing a conversation at a conference where two individuals complained about how one arbitrator nearly cost an arbitration firm its business. “It was a conference on ethics, if you can believe it,” Ms. Bartholet quipped.

Job applicants disclosing disabilities are 26% less likely to receive expressions of interest from employers, according to a study conducted by researchers at Rutgers and Syracuse.  The New York Times reported that the study in many ways replicated the methodology of others that examined race and gender discrimination in hiring.  The researchers created two resumes–one for a candidate with significant and relevant work experience and one for an applicant who graduated college a year ago.  For each resume, the researchers drafted three cover letters: one for an individual with no disability, one for an individual with a physical disability, and one for a candidate with Asperger’s syndrome.  Despite the disappointing prevalence of discrimination, the study did provide indications that the Americans with Disabilities Act has positive effects.  Discrimination against disabled job applicants was most prevalent among employers too small to fall within the statute’s ambit.  Employers under greater public scrutiny, such as publicly traded companies or federal contractors, showed significantly less instances of discrimination.

HEB, a grocery chain in Texas and one of the state’s largest private employers, is giving 15% of the company’s stock to qualifying employees, according to the New York Times.  Although the offering does not approach the employee-ownership levels of Publix or WinCo Foods–two majority employee-owned grocers–the retailer intends for the move to be seen at least partially as an attack on Walmart and other low-wage employers.  “We believe the race for the bottom cheapens the American experience. It’s bad for the country and bad for companies,” HEB President and COO Craig Boyan said. “We think there is great benefit in a more empowered, inspired, proud, trained work force.”

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