A Narrow Proposal Aimed at Mandatory Arbitration in the Contracts of Employees of Government Contractors

The broadly drawn Arbitration Fairness Act, which wouldinvalidate pre-dispute arbitration clauses in employment, franchise andconsumer contracts, has been milling about Congress.  Supporters of the Act have often pointed to the unbelievablygrim story of Jamie Leigh Jones, an employee of Halliburton who was gang raped byfellow employees and detained in a shipping container while working oversees in Iraq.  Apparently sheis not the only female employee of a government contractor to have endured suchan unspeakable experience. 

Halliburton fought tooth-and-nail to invoke the arbitration clausein Ms. Jones’ employment contract and to thereby keep her claims against it out of court.  Ultimately, afterfour years of fighting for her right to sue in court, the Fifth Circuitrecently construed the scope of Ms. Jones’ arbitration clause narrowly, and held that Ms. Jones should not be compelled to arbitrate herclaims.  But the Fifth Circuit’sholding, of course, is limited to that particular contract and that particular jurisdiction, and its reach andinfluence is as yet unknown. 

 Ms. Jones’ case is undoubtedly an egregious and extremeexample of the potential injustices occasioned by pre-dispute (or “mandatory”)arbitration clauses in the employment context.  Those who support the Arbitration Fairness Act have told herstory in support of its passage – leaving one to wonder whether the story,while a compelling one, was sui generis, and not a basis on which to paint abroad policy against pre-dispute arbitration in all employment contracts, aswell as consumer and franchise contracts.

But, Stuart Smalley Sen. Al Franken has found bipartisansupport in a narrower piece of legislation that would directly address caseslike that of Ms. Jones.  He has proposed an amendment to the 2010 Defense Appropriations bill that wouldwithhold defense contracts from companies like Halliburton if their contracts withtheir employees restrict employees from suing in court for claims such as sexualassault, battery and discrimination. 

Franken spoke eloquently and persuasively of the need forthis legislation, which is so narrow in scope it seems hardly objectionable:

Though, some Republicans remained unwilling to walk acrossthe aisle to meet Franken on this legislation; Sen. Jeff Sessions described theamendment as a “political attack on Halliburton.” 

Wait a second, who was attacked here?

[Meredith R. Miller] [h/t Emily Small]