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New Jersey Employment And Civil Rights Trial Lawyer Supports Proposed Legislation, The "Justice For Service Members Act"

On June 9, 2016, a bi-partisan group of federal legislators proposed Senate Bill 3402 (House Bill 5426), called the "Justice for Service Members Act." The sponsors of the bill are Senators Blumenthal (Democrat, Connecticut), Durbin (Democrat, Illinois), Leahy (Democrat, Vermont), and Franken (Democrat, Minnesota). The sponsors of the House Bill are Congressmen Cicilline (Democrat, Rhode Island), Matthew Cartwright (Democrat, Pennsylvania), Tulsi Gabbard (Democrat, Hawaii), Joe Wilson (republican, South Carolina), Jackie Walorski (Republican, Indiana), and Walter Jones (Republican, North Carolina).

This bill is, hopefully, one of the first "dominoes" to fall in finally doing away with a vile (and very long-lived) effort. I speak of the program to deceive the American public into feeling as if they can obtain "justice" when they're forced by un-negotiated "contract" provisions into putting their case not before a jury of their peers in a court of law, but before a single arbitrator. An arbitrator chosen from associations where arbitrators are paid exclusively by corporate America, and where they damn well know how their "bread is buttered." 

Of course, the American public makes it easy to lie to them. Anything that "bashes" lawyers, lawsuits or the court system finds, unfortunately, fertile ground as a result of a very conscientious and expensive effort, since the first Reagan administration, to build a powerful federal Chamber of Commerce and a powerful corporate lobby. The primary goal of these cultural "builds" over the last several decades was, and is, the progressive dismantling of the civil justice system, the right to access a trial by jury.

As a consequence of all of this, the federal and various state "Arbitration Acts" require that when a commercial contract or an employment contract is put in front of somebody, and when that somebody (whether a customer or a worker) is told "this is non-negotiable, sign it or you don't get your iPhone," or "sign it or you can't have a job", what choice do you have but to sign away their rights?

In the law, we call these "Contracts of Adhesion" because they're "sticky," meaning that there's no way to get rid of them; you don't negotiate them. For example, when's the last time that someone trying to get a basic old (run-of-the-mill) job (as opposed to some highly-compensated executive or professional job) negotiated with the person that holds their financial future (and the ability to support themselves and their family) in their hands? When's the last time that you negotiated with Apple over your i-contract instead of clicking "I agree?" If you don't click "I agree," good luck having any ability to communicate in today's world. Good luck having access to the internet, buying a car, buying a home or buying just about anything else. Good luck using a gymnasium, or putting a relative in assisted living or skilled nursing care.

Arbitrations, ironically, are more expensive for defendants because arbitrators charge fees that judges don't. Yet defendants are happy to pay these fees. Ever wonder why? It shouldn't be that difficult to figure out. If the defendants would rather pay an arbitrator to preside over a case when they could have a judge for free, what does that tell you about the belief that the defendants have in the outcome of an arbitration?

You guessed it. They expect to win most of the time; and they almost always do in an arbitration context. They also manage to harm tens of thousands or even hundreds of thousands of people in little ways, and then prevent those people from uniting to form class actions to validate their rights, because many arbitration agreements forbid you from joining class actions.

It's been this way at the state and federal level for decades. Lawyers routinely attempt to fight arbitration agreements and we routinely lose because the Federal and State Arbitration Acts are so powerful and because Republican-dominated judging at the federal level and at the United States Supreme Court continually interpret all arbitration agreements in favor of corporate America.

But perhaps, just perhaps, that's going to change.

This bi-partisan bill would make forced arbitration clauses involving protections under the Uniformed Services Employment and Re-Employment Rights Act (USERA) illegal. This act was passed by congress to protect service members from employment discrimination when they leave civilian jobs for military service. It's one of many employment rights statutes at the federal level (with many analogs at the state level) that protects a worker's rights.

It is, other than the fact that it pertains specifically to service members, fundamentally, no different than anti-discrimination statutes, anti-whistleblower retaliation statutes, disability accommodation statutes, etc. Fundamentally, if this protection can be put through to weaken the Federal Arbitration Act, then, on principle, there's nothing preventing a further weakening of the act to finally start restoring the right to a trial by jury for commercial agreements, all employment, and the use of nursing homes.

It doesn't matter for whom you've been voting at the congressional level or for president. It doesn't matter if you've been voting straight Republican all this time. Unless you're a complete moron, you hopefully vote based upon what you think is best for you, best for your family, best for your future descendants, and, by extension, best for the United States. If you believe these things, then you should believe in a level playing field, in free access to the courts, and in a fair civil justice system. You should believe that anyone who fights against this bill, and who speaks in favor of forced arbitration, isn't looking out for your best interests, no matter what they say, no matter what your church says, no matter what your favorite radio host says, etc.

Get the point? Vote based on what's right, not based on what feels good from the echo chamber you might have been listening to.

Call the sponsors, whether they're from your party or not, and thank them. Even if they're not your legislators, tell them that you appreciate the effort and that you hope that they continue the effort on expanding the attack on forced arbitration and the restoration of the civil justice system to all aspects where forced arbitration clauses continue to hold sway. 

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