Sen. Al Franken (D-MN) Photo Credit: MinnPost
Senator Al Franken (D-Minn.) pushed an amendment to the Defense Appropriations Bill through the Senate on Tuesday that would force government contractors to modify every current employment agreement, specifically as they relate to arbitration. Contractors unwilling to drop arbitration clauses from their employment agreements will be denied defense funds. The end result to govcon firms is an onerous increase in legal and human resources costs, which will ultimately be passed on to customers (the government) at a time when Americans have spoken out vociferously against the excessive cost of government.
Employers use arbitration clauses to control litigation costs, usually by forcing both employer and employee to abide by findings of an independent arbitrator in employment disputes. Companies avoid legal fees from spurious lawsuits or the US’ endless appeals process by using arbitration, and employee consent to arbitration is implicit with their signature on their employment agreement.
The Franken Amendment to the Defense Appropriations Bill requires employers to remove or modify arbitration clauses that pertain to sexual assault, battery, or discrimination, and creates a heavy burden on the government contracting community by dramatically increasing legal costs. Contractors are immediately required to modify every active employment agreement and remove the only cost control on employment litigation.
While no one would object to Franken’s ostensible goal of protecting victims of sexual assault, harassment or discrimination, his use of this legislation to accomplish that end is inconveniencing and taxing the many to accommodate the few.
The debate leading to the vote brought Franken, Minnesota’s junior senator, in confrontation with Jeff Sessions (R) of Alabama, ranking member of the Senate Judiciary Committee. Sen. Sessions argued that Franken’s amendment reached too far into the private sector and suggested that it may violate the due process clause of the US Constitution. Sen. Sessions also noted that the Department of Defense opposed the amendment.
Franken argued that “Article 1 Section 8 of our Constitution gives Congress the right to spend money for the welfare of our citizens” and noted that Congress was able to pass laws barring federal highway funds to states that failed to raise their drinking age to 21, and that “[the Defense Appropriations bill] is full of limitations on contractors – what bonuses they can give and what kind of health care they can offer.” He closed, “The spending power is a broad power and my amendment is well within it.”
Franken then discussed the Jamie Leigh Jones case that spurred his legislative thrust. Jones sought to take her employers, who hold government contracts and dispute her claims, to court, but her employment agreement required her to pursue arbitration, limiting her appeal options.
Franken said, “The constitution gives everybody the right to due process of law,” Franken said. “…defense contractors are using fine print in their contracts do deny women like Jamie Leigh Jones their day in court.”
Sen. Franken’s amendment to the Defense Appropriations bill passed by a 38 vote margin: 68 to 30. Sens. Robert Byrd (D) of West Virginia and Arlen Specter (D) of Pennsylvania did not vote, but all other Senate Democrats voted for it, joined by 10 Republican senators, including all female GOP senators.
While no good American wants to deny an employee due process, particularly under the circumstances of criminal sexual assault, it seems government contracting firms are being singled out and unfairly targeted by this amendment. If this is indeed a problem in the US business and legal structure, it should be adjudicated as such.
I realize companies have an obligation to evaluate proposals for cost, but is it really a wild idea that on their own intiative companies should remove requirements that require people raped on the job to go to arbitration? Crimes are crimes and no crimes can be forced into arbitration, even if it is “inconveniencing and taxing.”
Personally, I applaud Sen. Franken for pushing this issue. I don’t agree with the stance that this is going to cost too much money for defense contractors – they earn plenty and what happened to that woman was horrible and I’m glad her plight has raised the consciousness of at least one senator.
Al Franken is a horse’s *** . . . who remains clueless in his role as a Senator. Yet again another one term wonder.
Franken is a tool of the socialist labor movement. He never had an original thought, that way AIr America failed. He couldn’t think on his feet.
This amendment is a waste of time and taxpayer dollars. For those that think the contractors make enough you need to understand the costs will only go up and they will continue to make money. In the end, the taxpayers will be paying for this. Gov’t contractors don’t have a magical source of income, it comes from the taxpayers. If the Gov does something that makes the contractors cost of work go up, the costs will be passed along. The arbitration clause does not prevent a person from having their day in court for any crimes committed against them. The criminal charges that should be filed against the rapist are not subject to the arbitration clauses. The arbitration is for those employees that want to sue their employer for the acts of another employee. In the case used as an example, the woman wants to sue her employer and claim the rape was their fault or that they didn’t do enough to prevent it. The arbitration does not impact the criminal charges that will surely be filed against the rapist. The victim has civil court in addition to criminal court to use to ensure the rapist gets the highest level of punishment afforded by the law. Franken is a bonehead and has just levied a tax on all working Americans.
[...] how the industry treats its employees, something it can’t do for other industries. Take the Franken Amendment, for example, or Executive Order 13494, an Obama order that prohibits contractors from taking [...]
[...] how the industry treats its employees, something it can’t do for other industries. Take the Franken Amendment [10], for example, or Executive Order 13494 [11], an Obama order that prohibits contractors from [...]
Thank you Senator Franken! It’s high time that Congress put a stop to this trend in contracts that forces arbitration. It seems like every contract between an individual and a large corporation now has an arbitration clause in it. Personally, I insist on crossing it out before I will sign a contract. I see this in lending contracts, when trying to purchase an automobile, rental agreements, etc. Corporations have no legal footing to limit the individual’s right to due process. The Government is already eroding our individual rights in the name of homeland security, this ammendment is a first step to puting an end to corporate America trying to do it too!
Arbitration is not “independent” if it is performed by an arbitrator of the contractor’s choosing. Until arbitration is truly independent, we should not be limiting citizens’ access to a jury.