Demise of Mandatory Arbitration in Sexual Misconduct Cases
In a rare show of bipartisanship last week, the United States Congress passed legislation to end the practice of compulsory arbitration in cases involving claims of sexual assault or sexual harassment in the workplace. The House of Representatives passed the bill in a vote of 335-97, with all opposing votes coming from Republicans. Two days later, the Senate unanimously approved the bill by voice vote. In the Senate, Senator Kirstin Gillibrand, a New York Democrat, and Senator Lindsey Graham, a South Carolina Republican, co-sponsored the legislation. The Biden administration has indicated that the President will sign the bill into law.
In order to gain wide-spread bipartisan support, the bill was limited only to claims of sexual assault and sexual harassment rather than including broader forms of gender and other discrimination. There is currently a House bill pending known as the Forced Arbitration Injustice Repeal, or FAIR Act (H.R. 963), that if passed would make unenforceable all pre-dispute mandatory arbitration involving employment, consumer, antitrust, or civil rights disputes. That legislation does not have the broad support of the bill that just passed.
In the wake of the #MeToo movement, a number of high-profile companies had already recently begun banning forced arbitration in sexual harassment cases, including Microsoft and Wells Fargo. However, tens of millions of American workers are still subject to mandatory arbitration to resolve all disputes, including discrimination and harassment claims, to pay disparity complaints, and other common employment-related disputes. Many employees do not even realize when they sign employment agreement paperwork that they are giving up their rights to resolve employment disputes in a public courtroom setting or before a jury.
In addition to the potential cost savings of arbitration vs. litigation, many employers prefer arbitration as a way to keep disputes with charged allegations such as racial or gender discrimination or harassment out of the public court system and potentially away from the press. In addition to the lack of public access to arbitration proceedings, many, if not most cases of this nature that are settled during arbitration contain confidentiality provisions as a condition of settlement.
The ban on forced arbitration in sexual harassment and sexual assault cases will be effective immediately once the bill is signed into law by President Biden. It will also apply in certain consumer-related cases such as when a consumer signs an agreement in exchange for products such as ride sharing services. Many in the #MeToo movement have argued the need for this legislation because mandatory arbitration clauses in employment agreements have made it difficult to properly penalize sexual abusers for their offenses. The successful passage of the legislation was particularly welcome news to Gretchen Carlson, the former Fox News anchor whose lawsuit against Roger Ailes, the former Chairman of Fox News, first brought widespread public attention to the issue of mandatory arbitration clauses.
Taking Time to Heal: Modernizing Bereavement Policies
As we emerge from a pandemic that resulted in more than 900,000 deaths (and still counting) in the United States, employers have begun to re-evaluate and expand their bereavement policies. In recent news, Facebook just modified its bereavement policy to include 10 days paid leave for the loss of a non-immediate family member. Google now pays a widow/widower half of their partner’s salary for a DECADE. Goldman Sachs also made recent headlines for increasing its bereavement leave period from 5 days to 20 days for the loss of a partner or child, and for implementing a 20-day paid leave policy for parents who suffered a pregnancy loss.
According to the Society for Human Resource Management, approximately 88% of businesses offered bereavement leave to their employees in 2020, up from 81% in 2016. (Sadly, that means as of 2020, 12% of employers still DO NOT offer any paid bereavement leave.) Typically, these policies allow for a short window of 3-5 days off following the loss, and are only applicable when the death involves an immediate family member – a spouse, parent, or child.
The pandemic has forced people to acknowledge that grief does not require the label of specific relationships, but it does require time and space to process, and employees need that support from employers. It is time to update your company’s bereavement policy to provide that layer of comfort to your employees when needed.
Companies should first consider increasing the number of days of paid time off, and expanding the definition of a family member to include, for example, an unmarried partner, a sibling, cousins, and maybe even pets (they are family too!). Employers can distinguish between immediate and distant relatives where appropriate, or offer additional paid time off when the employee travels out of town to attend services.
Every company varies, but no matter what the policy is, your employees want to know that when it is needed, there is paid time off to grieve their loss. The Employment & Labor attorneys at WC&S are here to help you update your policy to meet your employees’ expectations.
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