Comments on: Another reason why letting contractors operate above the law is a bad idea

By: Thomas, TSID

Thomas, TSID — Wed, 20 Feb 2008 15:15:27 +0000

I guess as a practical matter almost any judge would stay the non-arbitrable part while the arb went on, because it is the approach most likely to save them a lot of work; and since discovery rules in employment arb are not bad (unlike, say, securities arb, where discovery obligations have often been honored in the breach), I suppose her procedural rights would be fairly well protected.

Thanks, Zuzu!

By: zuzu

zuzu — Wed, 20 Feb 2008 02:57:16 +0000

If her state has mandatory joinder requiring her to bring all of her claims arising from a common nucleus of operative facts in the same case, does she have to move the whole thing to arb?

What I’ve usually seen is that the federal suit is stayed pending the arbitration, or the arbitrability issue is decided first, and any arbitrable claims are referred to arbitration. There’s a pretty strong policy in favor of arbitration.

Federal courts *do* have jurisdiction under the Federal Arbitration Act to vacate, modify or confirm an arbitration award, though the standards for vacation or modification are pretty high. Usually, “manifest disregard of the law or facts” is required.

By: shrimplate

shrimplate — Wed, 20 Feb 2008 00:35:36 +0000

What Hector B. said.

You have to wonder what’s going to happen to the woman who retaliates against her attacker.

By: jenny h-m

jenny h-m — Tue, 19 Feb 2008 23:03:17 +0000

See, I would bet sooo much money that the same folks who would be all for these contractors having immunity in Iraq would be spitting feathers at the idea of OMG DISGUSTING SHARIA LAW non-binding opt in arbitration mechanisms in the US and UK.

Ironic, much?

By: Thomas, TSID

Thomas, TSID — Tue, 19 Feb 2008 22:39:41 +0000

Zuzu, suppose she’s domiciled in a state that recognizes her claim against the rapist and, in the absence of clear applicable law for the location of the events, applies its own. If her state has mandatory joinder requiring her to bring all of her claims arising from a common nucleus of operative facts in the same case, does she have to move the whole thing to arb? If she doesn’t join the contractor, does she waive the arb? Can the rapist implead the employer and bootstrap himself into the arbitration?

By: Hector B.

Hector B. — Tue, 19 Feb 2008 21:55:22 +0000

I wonder what would happen should one of these rape victims kill her attacker. I bet they’d find plenty of applicable law to prosecute her with.

By: zuzu

zuzu — Tue, 19 Feb 2008 21:24:03 +0000

And to clarify, when I say “a suit against the rapist,” I mean a civil suit. It’s pretty clear that these contractors and their employees are protected from criminal prosecution.

By: zuzu

zuzu — Tue, 19 Feb 2008 21:23:02 +0000

I’ve done some arbitration in my time, and Astrea’s right — it’s based on contract between the employer and employee, not between the employee and the rapist. The one good thing about it is that, unlike in other kinds of employment claims, claims based on Title VII, which this most assuredly would be, are arbitrated with the same substantive law and penalties available to plaintiffs in federal court. IOW, you can waive your contract rights, but you can’t waive your civil rights by agreement.

The real issue is whether the employee can find a forum for a suit against the rapist. She has to arbitrate — caselaw holds that an agreement to arbitrate is valid and enforceable if the dispute falls within the arbitrability clause (and a company like this will have an exceedingly broad one) — but her claim against the rapist personally probably falls outside the scope of that agreement. But which court would have jurisdiction?

By: Astraea

Astraea — Tue, 19 Feb 2008 21:20:07 +0000

Jill, thanks for clarifying. Sometimes the sarcasm goes over my head after a long day! But I figured either way you knew what you were talking about.

Thomas, that makes sense. The whole situation is sickening and I completely agree about arbitration agreements.

By: Jill

Jill — Tue, 19 Feb 2008 21:12:01 +0000

My understanding was that the arbitration was between the company and the rape victim, not between the rape victim and the rapist. If that’s the case, the rapist isn’t being punished at all. When they refer to “personnel disputes,” they mean employer-employee disputes, I believe.

No, you’re right. My use of the term “punishment” was sarcastic — there’s no punishment at all. The rapist, as I understand it, usually has to participate in some way in the arbitration (giving their side of the story, at least), but that’s it.