The Facts

1 - Which tech companies are affected by forced arbitration?

In surveying the employees of 30+ tech companies and 10+ common Temp/Vendor/Contractor suppliers in the industry, not a single business could meet 3 basic criteria of a transparent & equitable workplace. #EndForcedArbitration #googlewalkout #MeToo #TimesUp #DumpForcedArbitration

Three Criteria of Transparency & Equity.  First, arbitration is optional for all forms of disputes between employers and their employees, temps, vendors and contractors.  Second, no class action waivers that prohibit employees from banding together to file suit.  Third, no gag rule on keeping arbitration hearings proceedings & settlements confidential.

We invite any of the companies shown or tagged below to confirm or correct any information. If your policies vary by type of employee, by duration of employment or by geography, your willingness to clarify the differences will help tech workers everywhere. If you work at one of these companies, today is for you. #EndForcedArbitration

This table compares the first six companies in our list: Company Netflix Sexual Harassment Forced Discrimination Forced Wrongful Termination Forced Opt Out Unavailable Confidentiality Unrestricted Class Action Banned Company Facebook Sexual Harassment Optional Discrimination Forced Wrongful Termination Forced Opt Out Available Confidentiality Restricted Class Action Banned Company Adecco Sexual Harassment Forced Discrimination Forced Wrongful Termination Forced Opt Out Available Confidentiality Restricted Class Action Banned Company Uber Sexual Harassment Optional Discrimination Forced Wrongful Termination Forced Opt Out Unavailable Confidentiality Unrestricted Class Action Banned Company TwoSigma Sexual Harassment Forced Discrimination Forced Wrongful Termination Forced Opt Out Unavailable Confidentiality Restricted Class Action Banned Company AirBNB Sexual Harassment Optional Discrimination Optional Wrongful Termination Forced Opt Out Unavailable Confidentiality Unrestricted Class Action Allowed Source:  We compiled this data based on companies’ public statements, journalists’ reports and employees who have reached out with their own personal contracts in the US.
@Airbnb @Amazon @AppleSupport @BuzzFeed @eBay @facebook @instagram @whatsapp @Google @hulu @IBM @intel @LinkedIn @lyft @Microsoft @netflix @Oracle @PalantirTech @Pinterest @reddit @riotgames @salesforce @Samsung @Snap @Spotify @Square @SlackHQ @Tesla @TezaTechCompany @Twitter @TwoSigma @Uber @oath @Yahoo @tumblr @HuffPost @AOL @Accenture @AdeccoGroup @Aerotek @Cognizant @IntelliproGroup @Manpower @netpolarity @ProUnlimited @SynergisIT ‏@TEKsystems @VacoGlobal

Don't recognize some of those logos or handles? That's probably because they are suppliers of temporary workers, which compose a massive part of the tech workforce. If you work at one of these companies, today is also for you. #EndForcedArbitration #ContractWorkerStories

These policies apply to full time employees only. A temp, vendor or contractor from, say, Adecco, has two contracts — one with Adecco and one with the company contracting her (ex: Google).  So while she may have an opt-out at Adecco, she will be forced into arbitration by Google.  Furthermore, a policy change at Google does not apply to a TVC (such as the recent decision to make arbitration optional for sexual harassment).  TVCs get the most restrictive policies from both sides...and yet, they are the majority of workers at Google.  But contracts may vary.  We understand contracts may vary by location, year or type of employee, so we invite these companies to tweet at us to confirm or correct any information! We extend this invitation to any employee of these companies too.

2 - Wait, what is forced arbitration?

If you’ve never heard about forced arbitration, you’re not alone. Many workers are now starting to learn about the rights they signed over to their employers when accepting that job offer. #EndForcedArbitration #googlewalkout #MeToo #TimesUp #DumpForcedArbitration

Arbitration is an ‘alternative’ form of dispute resolution (ADR) to resolve legal disputes … as in alternative to the courts. Arbitration is “forced” when your employer requires you to sign away your right to go to court at the start of employment, before any legal dispute arises. You may be banned from coming together with other employees to bring legal claims as a group, either in a class action lawsuit or in arbitration.  And many employers also have gag rules that prohibit you from about even talking about your experiences with arbitration.

Unlike a normal trial, arbitrations hearings happen behind closed doors with a handful of people. #EndForcedArbitration #googlewalkout #MeToo #TimesUp #DumpForcedArbitration

Who is involved?  There is no jury of your peers or judge.  It’s just you & your lawyer, the other party and his/her lawyer - and then a panel of one to three arbitrators.  Each party picks an arbitrator and the third must be agreed upon by both parties. (All three arbitrators work for an arbitration firm selected by your employer.)  The American Arbitration Association found that a three-arbitrator panel can actually cost five times as much as a single arbitrator (Source: bit.ly/AAA2017Report), so plaintiffs are steered towards a single arbitrator. There is no jury of your peers or judge.

Forcing workers to agree to arbitration as a condition of employment creates a number injustices. #EndForcedArbitration #googlewalkout #MeToo #TimesUp #DumpForcedArbitration

Why is forced arbitration unfair?  Your employer hires the arbitration firm. Employers like your company are the “repeat customers” in arbitration, so each arbitrator who rules in an employee’s favor risks being rejected in a future case.   Research repeatedly shows that arbitrators are more likely find in favor of your employer over you.  You are 1.7 times more likely to win in federal courts than in arbitration and 2.6 times more likely to win in state courts than in arbitration. Forced arbitration settlements yield significantly lower damages for you than in federal and state courts. Banning class action lawsuits means you can never band together with your colleagues to share the costs of proceedings or demonstrate intentional, systemic patterns of harm. All rulings are final with no meaningful chance to appeal. No public filings of complaint details mean your employer never has to answer for its systemic or cultural issues. Your employer can limit its obligation to collect or disclose evidence you need to prove your case. At the end of the day, it comes down to choice, transparency and accountability. Sources: bit.ly/EPIArbitrationStudy, bit.ly/CPDArbitrationStudy

The practice of forced arbitration has grown significantly in the last seven years. Among companies with 1,000 or more employees, over 65% percent have mandatory arbitration procedures. #EndForcedArbitration #googlewalkout #MeToo #TimesUp #DumpForcedArbitration

How many workers are affected by forced arbitration?  Today, at least 60 million Americans are forced to use arbitration instead of having the option to take their employers to court for harassment or discrimination.   Women and people of color, the populations most often harassed or discriminated against, are disproportionately affected by this practice. Sources: bit.ly/EPIArbitrationStudy, bit.ly/CPDArbitrationStudy

3 - How do I find out my employer's policy on arbitration?

Dig up your employment agreement or offer letter to find out if you are one of the 60 million Americans affected by forced arbitration. (You can always request a copy of your records from your HR department.) Now look for a clause about arbitration. Note to temps, vendors & contractors - check both the contract with your staffing agency & the company that contracts you. They may each have different rules. #EndForcedArbitration

Pull up your employment agreement and Ctrl+F for the term ‘arbitration’.

Now look for whether or not your company has a gag rule that prohibits whether or not you can talk about your experience during the arbitration process. #EndForcedArbitration

Check whether those proceedings & settlement awards must remain confidential or not

If your employer uses arbitration, find out what company or law firm provides the arbitrators and how they get paid. #EndForcedArbitration

Find out which arbitration company your company uses and if you pay for the arbitration fees

Fighting for your civil rights often requires banding together with others who have also faced discrimination & harassment, but employers often make you waive your right to file a class action lawsuit. Does yours? #EndForcedArbitration

Confirm if you’re banned from forming a class action suit with colleagues who have experienced the same things

Companies like @facebook, @Twitter and @AdeccoGroup give you a way to opt out of forced arbitration, but you have to really search for it & it may have a time constraint. Check if your company does the same. #EndForcedArbitration

Check if your companies offer an opt-out and the timeframe within which you must follow the process.

4 - Who are the arbitrators?

Retired judges / lawyers often serve as arbitrators, working for a firm like the American Arbitration Association. AAA is one of the largest arbitration firms used by companies like Facebook, Lyft, Oracle, Samsung and Two Sigma. @ADRorg #EndForcedArbitration #googlewalkout

Who are the arbitrators?  American Arbitration Association (www.adr.org)  Type:  Nonprofit organization Annual Revenue:  $94 million (USD) per year (Source: bit.ly/ProPublicaAAA) and pg 47 onwards of bit.ly/AAA2017Report) Diversity: 24% women and minorities (Source: https://www.adr.org/RosterDiversity)  Customers:  Facebook, Lyft, Oracle, Samsung, Two Sigma Note: You can also visit https://www.adr.org/Consumer to download a list of cases and see if your company is listed for any of the claims initiated by employees. Interesting Fact:  AAA recently partnered with the International Centre for Dispute resolution.  According to the 2017 Annual Report, “there were 1,026 cases filed with the ICDR in 2017, with total claims of $6.33 billion and counterclaims of $648 million.”  The report goes on to note that “the largest claims by industry were (in descending order) in technology, commercial insurance, energy, aviation/aerospace/national security, pharmaceuticals, financial services and commercial construction. There was a 21% increase in Canadian parties in ICDR cases, and 55 hearings took place in Canada.

While AAA is a non-profit, JAMS, short for Judicial Arbitration and Mediation Services, is a private company used by employers like Google, Airbnb, Uber, Tesla, VMWare. @JAMSADR #EndForcedArbitration #googlewalkout

Here’s an extended cut of Professor Katherine Stone from the UCLA Law School explaining how evidence collection processes dictated by these arbitration firms affect discrimination cases. #EndForcedArbitration

KStone_Twitter_WhoArbitrators_EvidenceCollection.mp4

5 - How does arbitration affect other industries?

It’s no coincidence that the more women or people of color in an industry, the more likely employers are to force arbitration. #EndForcedArbitration #googlewalkout #MeToo #TimesUp #DumpForcedArbitration

“Overall, female workers (at 57.6 percent) and African American workers (at 59.1 percent) are the most likely to be subject to mandatory arbitration among these five groups of workers.” (Source: bit.ly/EPIArbitrationStudy)  “Construction, an industry with a predominantly male workforce, has the lowest rate of imposition of mandatory arbitration, whereas education and health, industries with a more predominantly female workforce, have the highest rate of imposition of mandatory arbitration.”  (Source: bit.ly/EPIArbitrationStudy)  However, even the construction industry experienced a jump in filings in 2017.  The American Arbitration Association confirmed that “construction filings were up 4%; cases with claim amounts of at least $500,000 increased 12% and cases with claim amounts of at least $1,000,000 increased 13%.” (Source: bit.ly/AAA2017Report) Construction 37.7%, Manufacturing 52.9%,Wholesale Trade 52.9%, Retail Trade 57.1%, Transportation 51.3%, Information 59.1% Finance, insurance, real estate 48.5%, Business Services 61.1%, Education, health 62.1%, Leisure, hospitality 54.%, Other services 48.5%

6 - When did arbitration start ... and how did we get there?

How did we get here? The 1925 Federal Arbitration Act (FAA) legalized arbitration between shipping companies for settling commercial disputes, but the Supreme Court has gradually allowed companies to expand the use of arbitration to employees & consumers. #EndForcedArbitration

1984 - Southland Corp. v. Keating rules that the FAA applied to disputes brought in state courts.  Going forward, the FAA now preempts state law, blocking states’ attempts to protect workers and consumers from forced arbitration. 1991 - Gilmer v. Interstate/Johnson Lane upholds the enforceability of forced arbitration agreements between employers and employees. 2001 - Circuit City vs. Adams confirms that the FAA excludes only transportation workers, but other workers are subject to arbitration clauses in their employment agreements 2011 & 2013 - AT&T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant upholds the class action waivers in forced arbitration clauses in consumer cases 2018 - Epic Systems v. Lewis, Ernst & Young LLP v. Morris and NLRB v. Murphy Oil USA, Inc. rules that workers’ right to undertake “concerted activity” to improve their workplace under the National Labor Relations Act does not include the right to take collective legal action, so employers can ban class action and other group lawsuits

Professor Myriam Gilles of Cardozo Law School is one of the most cited civil procedure scholars in the nation. We found her 8 minute crash course on the Supreme Court cases a must-watch.

Jan 15, 2019 - The US Supreme Court ruled 8-0 Tuesday that courts lack authority under the Federal Arbitration Act to order arbitration in cases that involve contracted workers engaged in foreign or interstate commerce. Learn more here.

7 - How prevalent is arbitration across the United States?

Nearly 70% of workplaces located in California, Texas and North Carolina all required forced arbitration. #EndForcedArbitration #googlewalkout #MeToo #TimesUp #DumpForcedArbitration

Percentages of workplaces per state with mandatory arbitration.  Source: bit.ly/EPIArbitrationStudy California 67.4% Texas 67.9% Florida 53.6% New York 55.0% Illinois 42.3% Pennsylvania 54.5% Ohio 51.8% Georgia 55.3% North Carolina 70.0% Michigan 42.9% New Jersey 40.5% Virginia 55.2%
As you can tell, our efforts are pretty U.S. focused. We are starting here first given the company footprint and then expanding our efforts. We know our colleagues around the world deserve the same benefits and will fight for each and every one of them!

8 - What is Congress doing about this?

The Arbitration Fairness Act has been introduced every year in the Senate since 2007 with growing bipartisan support. Let's make 2019 the year this sticks. #EndForcedArbitration

Thank you to the original 30 co-sponsors of the AFA for standing up for workers’ rights & supporting the end of forced arbitration! @SenBlumenthal @SenGillibrand @SenatorBaldwin @SenatorDurbin @maziehirono @SenatorLeahy @PattyMurray @SenFeinstein & more! #EndForcedArbitration

2018 Senate support for the Arbitration Fairness Act: 100 percent of Senators in California Connecticut Hawaii Illinois Massachusetts  New Hampshire New Jersey New Mexico Oregon Rhode Island Vermont, 50% of Senators in Maryland Minnesota Nevada New York Ohio Pennsylvania Virginia Washington Wisconsin Unlisted states have no support
Thank you <list of senators to come> for your courage on this matter. We invite members of Congress to tweet at us to confirm or correct their positions and we will gladly update our tracking.

House Dems introduced the Restoring Justice for Workers Act in 2018 to end forced arbitration & we have a better shot of a victory here first. So tell your rep to contact Rep. Nadler to become an original co-sponsor of the 2019 bill. http://bit.ly/findmyhouserep #EndForcedArbitration

Thank you to all the original 50+ co-sponsors of the RJfWA for standing up for workers’ rights and supporting the end of forced arbitration: @RepJerryNadler @davidcicilline @RepJayapal @RepHankJohnson @RepMaxineWaters @RepYvetteClarke @RepLynch @RepAnnaEshoo @RepSpeier and more!

2018 House Support for the Restoring Justice for Workers Act, 100% of Representatives in Vermont, 33% to 10% of Representatives in California Maryland New Jersey Massachusetts Oregon Florida New York Virginia Ohio Arizona Illinois Indiana Washington All other states are under 10%
Thank you <list of senators to come> for your courage on this matter. We invite members of Congress to tweet at us to confirm or correct their positions and we will gladly update our tracking.

Until the federal government passes legislation, state governments are working on creative solutions to end forced arbitration. #EndForcedArbitration

State legislators in Oregon, Washington, Vermont and New York have called for laws to protect workers in their own states.  The Center for Popular Democracy works with grassroots organizing groups to push state laws allowing whistleblowers to get into court to confront workplace violations, a model used in the False Claims Act and California’s successful Private Attorney Generals Act (PAGA).  Because the action is filed on behalf of the state to promote compliance with its laws, courts have ruled that the right to seek penalties can’t be waived in arbitration.  States and cities can also refuse to award contracts or tax breaks to companies that use forced arbitration to hide bad business practices. Source: bit.ly/CPDForcedArbitrationCrisis

9 - What can I do if I am forced into arbitration?

If you’re one of the 60 million workers bound by forced arbitration, you should know your options. Here’s a cheat sheet of what you can and can’t do under forced arbitration clauses. @USEEOC #EndForcedArbitration #googlewalkout #MeToo #TimesUp #DumpForcedArbitration

Here’s what you CAN’T do: File a civil suit against your employer File a civil suit against the individual who harassed or discriminated against you (may vary by employer) Band together with other employees to file a class action suit against your employer (may vary by employer) Speak out about your experience (may vary by employer) Here’s what you CAN do: Opt out of arbitration if your employer permits!   File a police report about the assault so the state can bring a criminal case against your harasser (ex: The People vs. …) Report a complaint of discrimination / harassment / assault with the EEOC within 180 days of the incident (bit.ly/fileEEOCcharge)  Request a different arbitration panel configuration depending on your employer’s arbitration firm (ex: bit.ly/JAMSRules) Tell your story to this community if you’re not under a confidentiality gag rule Get involved in efforts to reform the law and ensure employees have access to courts when harmed by workplace harassment and discrimination

Part 1 of 2: Hear/see what Professor Katherine Stone from @UCLA_Law wishes all workers knew about arbitration. #EndForcedArbitration #googlewalkout #MeToo #TimesUp #DumpForcedArbitration

KStone_Mythbusting_1of2_WhatWorkersShouldKnow.mp4

Part 2 of 2: The most important myth to bust is around the role of a lawyer. Professor Katherine Stone of @UCLA_Law warns what happens when lawyers see an arbitration clause in your employment contract. #EndForcedArbitration #googlewalkout #MeToo #TimesUp #DumpForcedArbitration

KStone_Mythbusting_2of2_WhatWorkersShouldKnow.mp4

10 - How do I get involved?

So what can you do? 1st, tell your rep to become an original co-sponsor of the bill to end forced arbitration/class action waivers in employment cases by calling Rep. Nadler’s office to become an original co-sponsor of the 2019 bill. bit.ly/findmyhouserep #EndForcedArbitration

Call on your Representative to become an original co-sponsor of the bill to end forced arbitration and class action waivers in employment cases. Tell your Congressperson to call Rep. Jerrold Nadler’s office to become an original co-sponsor of the bill for when the bill is brought to the House floor this year. bit.ly/findmyhouserep

2nd - if you have been a victim of harassment or discrimination, you are not alone. Reach out to the Equal Employment Opportunity Commission @USEEOC and file a complaint at bit.ly/fileEEOCcharge. #EndForcedArbitration

If you have been a victim of harassment or discrimination, you are not alone. Reach out to the EEOC and file a complaint at bit.ly/fileEEOCcharge.

3rd, call on your CEOs and call on your colleagues. Change starts from the inside. Share www.endforcedarbitration.com with anyone who couldn’t tune in today. #EndForcedArbitration #googlewalkout #MeToo #TimesUp

Many thanks to Emelyn Baker for her design talent and creating these pro bono for the cause. You are a true ally.