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FEBRUARY 15, 2022

Meyerson on TAP

On Banning (Some) Forced Arbitration

One lesson to progressives is, get the naming rights!

Last week, both houses of Congress passed, by overwhelming majorities, a
bill that banned forced arbitration in cases of sexual harassment and
abuse. In the House, the bill not only claimed unanimous Democratic
support, but a majority of Republicans voted for it as well. When the
bill came over to the Senate side, it was approved on a voice vote.
President Biden has said he'll sign the bill posthaste.

It would be great if the bill were just the opening act to a ban on all
forms of forced arbitration. Once it's signed into law, there will
still be an estimated 60 million American workers whose inability to sue
their employer for discrimination or other unfair treatment (save only
sexual harassment) will remain in place. (No such clauses exist where
workers are covered by union contracts.) When these non-union workers
signed their contracts going to work for their employer, the fine print
contained a clause banning them from taking that employer to court for
mistreatment on the job. Buried in the small-type details of the
contract, the clause is carefully designed to be overlooked by the
job-seeking workers, but even if they find it and read it, they still
must submit to it if they want the job.

To date, California is the only state to have outlawed forced
arbitration for any cause, while five other states-Maryland, New
Jersey, New York, Vermont, and Washington-beat Congress to the punch
by banning it for cases of sexual harassment. Federal courts have put
the California and New York statutes on hold, however, as federal law,
as construed by our deeply anti-worker Supreme Court, has ruled forced
arbitration altogether fitting, proper, and legal. For which reason, the
forced arbitration bans of those five predecessor states will only kick
in when Biden signs the bill, as will the sexual harassment parts of the
California law-but not the rest of it.

But as any legal empowerment of workers, ESPECIALLY among Republican
lawmakers, has been hard to find since the 1935 enactment of the
National Labor Relations Act, how do we account for last week's votes?
Part of the answer, surely, is that Republicans have to pay at least lip
service and sometimes a little more to women's empowerment, which, of
course, only becomes OK with them if they can separate it out from a
more general worker empowerment. Part of the answer is that Gretchen
Carlson was a more sympathetic figure to their base voters than Roger
Ailes.

Donations Are Tax Deductible

But the other part of the answer, I've realized, is the term "forced
arbitration" itself. For decades, the right has done a far better job
than the left in branding what should be popular policies with
awful-sounding names. Hence, since enabling more workers to have power
on the job through union representation had to be curtailed,
conservatives realized that requiring workers to pay their fair share to
the union for representing them had to be blocked. They began calling
such blocking legislation "right to work," though it really meant right
to freeload, which would discourage unions from organizing a worksite
where the workers they represented benefited from the union's advocacy
but wouldn't pay dues. Hence, since their campaign funding depended on
rewarding wealthy contributors, they renamed the estate tax the "death
tax." Every poll shows that Americans would dearly love to raise taxes
on our ultra-rich, but did the left rename the tax the "millionaires
tax" or the "billionaires tax"? Unfortunately, the right got there first
with the "death tax," and the term stuck.

But "forced arbitration," by contrast, is an accurate depiction of what
workers must submit to, and by virtue of its accuracy and descriptive
punch, it's no easy task for the right to defend it (which is why the
right relies in such instances on right-wing judges and Supreme Court
justices, who don't have to worry about public approval). To be sure,
the news pages of The Wall Street Journal refer to the practice as
"mandatory arbitration," but even that falls well short of sounding fair
to workers.

So why haven't businesses and the right sought to rebrand the practice
as, say, "speedy arbitration"? The reason, I suspect, is that business
doesn't want to call attention to the practice at all-that's why
it's way down in the fine print. By needing to conceal, they have
ceded the naming rights to worker advocates, for whom "forced
arbitration" is merely a somewhat punchier way to say "mandatory
arbitration."

I'm not saying it's all in the name, but as "right to work," the
"death tax," and now "forced arbitration" all demonstrate, some of it
is.

~ HAROLD MEYERSON

Follow Harold Meyerson on Twitter

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