ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Wednesday, October 7, 2009

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

The broadly drawn Arbitration Fairness Act, which would invalidate pre-dispute arbitration clauses in employment, franchise and consumer contracts, has been milling about Congress.  Supporters of the Act have often pointed to the unbelievably grim story of Jamie Leigh Jones, an employee of Halliburton who was gang raped by fellow employees and detained in a shipping container while working oversees in Iraq.  Apparently she is not the only female employee of a government contractor to have endured such an unspeakable experience. 

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

 Ms. Jones’ case is undoubtedly an egregious and extreme example 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 her story 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 a broad policy against pre-dispute arbitration in all employment contracts, as well as consumer and franchise contracts.

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

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

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

Wait a second, who was attacked here?

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

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I wonder if Jeff Sessions would speak out against an analogous bill targeting ACORN on the grounds that it constituted a "political attack" -- not that this bill actually targets Haliburton, since it would apply with equal force to all defense contractors.

Posted by: Jeremy Telman | Oct 10, 2009 7:57:52 AM

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