Franken Amendment Passes: GovCon Says Ouch

Sen. Al Franken (D-MN) Photo Credit: MinnPost
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.

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