Lobby Day 2013 Issues - AZSLIDE.COM
“Lobby Day 2013 Issues”
Presenters Julie M. Strandlie, Esq. Legislative & Public Policy Director National Employment Lawyers Association Ed Leyden, Esq. Leyden Law, LLC Paul Bland, Esq. Senior Attorney, Public Justice Public Justice
NELA Lobby Day 2013
Agenda 1.
Introduction
2.
Lobby Day Issues 1.
Civil Justice Tax Fairness Act 0f 2013
2.
Arbitration Fairness Act of 2013
3.
Lobby Day Program
4.
Your Next Steps
5.
Questions/Answers
Lobby Day Issues LAWYERS PROACTIVELY MUST ENGAGE POLICY MAKERS
NELA’s Lobby Day Issues Civil Justice Tax Fairness Act of 2013 (CJTFA, S. 1224/H.R.
2509) Senate: Senators Ben Cardin (D-MD) and Susan Collins (R-ME) House: Representatives John Lewis (D-GA), Aaron Schock (R-IL),
James Sensenbrenner (R-WI), Bobby Scott (D-VA) (5 additional cosponsors) Arbitration Fairness Act of 2013 (AFA, S. 878/H.R. 1844) Senate: Senator Al Franken (D-MN) (22 cosponsors) House: Representative Hank Johnson (D-GA) (57 cosponsors)
Civil Justice Tax Fairness Act of 2013 LEGISLATIVE/LEGAL BACKGROUND
Civil Justice Tax Fairness Act of 2013
Why the Civil Justice Tax Fairness Act is Needed
1918
Revenue Act of 1918
Codified non-taxability of noneconomic damage awards in all cases of personal injury (physical and nonphysical).
1986
Tax Reform Act of 1986
Repealed income averaging, even for back pay recoveries that represent several years’ back wages.
1996
Small Business Job Protection Act
Made non-economic damage awards in civil rights cases taxable – the first time since the tax code was enacted that any such personal injury awards were taxed.
Conference Report Language CONFERENCE REPORT ON H.R. 3448, SMALL BUSINESS JOB PROTECTION ACT OF 1996 (House of Representatives - August 01, 1996) Conference Report (H. Rept. 104-737)
Follows the House Report to include as income damage recoveries for nonphysical injuries: “The House bill provides that the exclusion from gross income only applies to damages received on account of a personal physical injury or physical sickness. If an action has its origin in a physical injury or physical sickness, then all damages (other than punitive damages) that flow therefrom are treated as payments received on account of physical injury or physical sickness whether or not the recipient of the damages is the injured party. For example, damages (other than punitive damages) received by an individual on account of a claim for loss of consortium due to the physical injury or physical sickness of such individual's spouse are excludable from gross income. In addition, damages (other than punitive damages) received on account of a claim of wrongful death continue to be excludable from taxable income as under present law.
Conference Report Language CONFERENCE REPORT ON H.R. 3448, SMALL BUSINESS JOB PROTECTION ACT OF 1996 (House of Representatives - August 01, 1996) Conference Report (H. Rept. 104-737)
The House bill also specifically provides that emotional distress is not considered a physical injury or physical sickness. FN 56: It is intended that the term emotional distress includes symptoms (e.g., insomnia, headaches, stomach disorders) which may result from such emotional distress. Thus, the exclusion from gross income does not apply to any damages received (other than for medical expenses as discussed below) based on a claim of employment discrimination or injury to reputation accompanied by a claim of emotional distress. Because all damages received on account of physical injury or physical sickness are excludable from gross income, the exclusion from gross income applies to any damages received based on a claim of emotional distress that is attributable to a physical injury or physical sickness. In addition, the exclusion from gross income specifically applies to the amount of damages received that is not in excess of the amount paid for medical care attributable to emotional distress.”
Current Tax Laws Penalize Employees and Hurts Business Since 1999, NELA has led the effort to restore fairness and simplicity to the
tax code regarding
Income averaging of lump sum back/front pay awards (eliminated in 1986) Taxation of non-economic damages in employment and civil rights cases (taxed since enactment of 1996 Act) Elimination of a double taxation on attorneys fees (to both the plaintiff and the attorney)
Achieved partial victory in 2004, when double tax on attorneys’ fees
eliminated. Legislation has been introduced in every Congress (except 109th), with
bipartisan support; has not been included in an enacted tax bill. With new resolve and determination from Congressional Champions and
coalition partners, CJTFA has been reintroduced in the 113th Congress.
Past Business Support For The CRTRA The following business organizations have over the years supported the legislation: U.S. Chamber of Commerce Association of Corporate Counsel Society for Human Resource Management The Chubb Corporation American Small Business Alliance Council of Insurance Agents and Brokers
Connecticut Business and Industry Association
Legislation Evolution 1999 106th Congress
Civil Rights Tax Fairness Act, H.R. 1997
First introduced, to (1) make non-economic damages in civil rights cases non-taxable again, (2) tax lump-sum back pay awards at correct marginal tax rate, and (3) repeal double taxation of attorneys’ fees.
2001 107th Congress
Civil Rights Tax Relief Act (CRTRA), H.R. 840, S. 917
Identical bill reintroduced, except name changed to Civil Rights Tax Relief Act .
2003 108th Congress
CRTRA, H.R. 1155, S. 577
Identical bill reintroduced. 137 House and 43 Senate cosponsors.
2004
American Jobs Creation Act
Repealed double taxation of attorneys’ fees in civil rights and employment cases.
2007 110th Congress
CRTRA, H.R. 1540, S. 1689
Nearly identical bill reintroduced, to (1) make noneconomic damages in civil rights cases non-taxable again and (2) tax lump-sum back pay awards at correct marginal tax rate. Minor changes to H.R. 1155 and S. 577 to take into account American Jobs Creation Act provisions on attorneys’ fees taxation.
2009 111th Congress
CRTRA, H.R. 3035, S. 1360
Identical bill reintroduced.
Legislation Evolution 2001 107th Congress
2003 108th Congress
Feb. 2004
2004
Civil Rights Tax Relief Act (CRTRA), H.R. 840, S. 917 CRTRA, H.R. 1155, S. 577
ABA Adopts Policy in Support
American Jobs Creation Act
Identical bill (except for name) reintroduced.
Identical bill reintroduced, with the exception that the list of covered statutes modified (Violence Against Women Act deleted from list of covered statutes. High point: 137 House and 43 Senate cosponsors. 2003 MY 115 receives widespread, diverse support among ABA sections, entities, and bar associations Eliminated double taxation of attorneys fees; created an above-the-line deduction for attorneys’ fees in civil rights and employment cases, as specified in 26 USC 62(e).
Legislation Evolution 2007 110th Congress
CRTRA, H.R. 1540, S. 1689
Definition of unlawful discrimination changed to reference to 26 USC 62(e) and modification to take into account American Jobs Creation Act provision to eliminate double tax on attorneys’ fees.
2009 111th Congress
CRTRA, H.R. 3035, S. 1360
Identical bill reintroduced.
2011 112th Congress
CRTRA, H.R. 3195, S. 1781
Identical bill reintroduced.
2013 113th Congress
CJTFA, H.R. 2509/S. 1224
Name changed to reflect range of unlawful discrimination included in 26 USC 62 (e), e.g. whistleblower cases, USERRA and need to restore fairness in the civil justice system. Minor change to ensure that arbitration awards or settlements are covered. Retroactive effective date included in both House and Senate versions.
Bipartisan Support Over Several Congresses Senate Democrats
Senate Republicans
Sample list of cosponsors: Jeff Bingamen (NM) Patrick Leahy (VT) Ben Cardin (MD) Richard Durbin (IL) Dianne Feinstein (CA) Tom Harkin (IA) Maria Cantwell (WA)
Sample list of cosponsors: Susan Collins (ME) Charles Grassley (IA) Johnny Isakson (GA) Orrin Hatch (UT) Richard Burr (NC) Thad Cochran (MS) Mike DeWine (OH)
Bipartisan Support Over Several Congresses House Democrats
House Republicans
Sample list of cosponsors: John Lewis (GA) Hilda Solis (CA) John Conyers (MI) Diana DeGette (CO) Robert Andrews (NJ) Jerrold Nadler (NY)
Sample list of cosponsors: Jim Sensenbrenner (WI) Deborah Pryce (OH) Aaron Schock (IL) Marsha Blackburn (TN) Henry Hyde (IL) Ron Paul (TX) Frank Wolf (VA) Ileana Ros-Lehtinen (FL) Dave Camp (MI)
Steve Cohen (TN) Charlie Rangel (NY)
113th Congress Cosponsors H.R. 2509
S. 1224
John Lewis (D-GA)*
Ben Cardin (D-MD)*
Jim Sensenbrenner (R-WI)
Susan Collins (R-ME)
Aaron Schock (R-IL)* Bobby Scott (D-VA) Betty McCollum (D-MN) Chris Van Hollen (D-MD) Lloyd Doggett (D-TX)* Eleanor Holmes Norton (Del. D-
DC) John Conyers (D-MI) Jerold Nadler (D-NY) * Member of House Ways & Means Committee or Senate Finance Committee
Current List Of Organizational Supporters H.R. 2509/S. 1224, CIVIL JUSTICE TAX FAIRNESS ACT OF 2013 113th CONGRESS ORGANIZATIONAL SUPPORTERS
National Employment Lawyers Association (NELA) AARP Alliance for Justice (AFJ) American Association for Justice (AAJ) American Bar Association (ABA) Chicago Bar Association (CBA) Human Rights Campaign (HRC) Government Accountability Project (GAP) Illinois State Bar Association (ISBA) Lawyers’ Committee for Civil Rights under Law Massachusetts Bar Association National Asian Pacific American Bar Association (NAPABA) National Association of Consumer Advocates (NACA) National Employment Law Project (NELP) National Partnership for Women & Families National Women's Law Center (NWLC) Ohio State Bar Association (OSBA) Public Citizen The Leadership Conference on Civil and Human Rights (LCCHR)
CJTFA Talking Points The CJTFA Promotes tax fairness
There is no rational justification for taxing non-economic damages in workplace cases but not in slip and fall cases.
Benefits both employees and employers
Promotes early settlement
Saves judicial resources
Legislative Advocacy: A Key Part Of Your Litigation Toolkit MWELA and Maryland Employment Lawyers Association members were successful in obtaining a Maryland state version of the federal Civil Rights Tax Relief Act, using constituent contacts and client testimony. Next stop: the U.S. Capitol! Senator Ben Cardin (D-MD) is now the lead Senate sponsor of the bill.
Front Row, l-r: Tom Gagliardo, Theresa Devine, Vikki Rouleau, and Bruce Fredrickson. Back Row: l-r: Geoffrey Simpson, Gwen D'Souza, Josh Bowers, and Richard Renner.
Arbitration Fairness Act of 2013 LEGISLATIVE/LEGAL BACKGROUND
NELA’s Lobby Day Issues Arbitration Fairness Act of 2013 (AFA, S. 878/H.R. 1844) Senate: Senator Al Franken (D-MN) (22 cosponsors); Referred to
Senate Committee on the Judiciary. House: Representative Hank Johnson (D-GA) (57 cosponsors);
Referred to House Committee on the Judiciary.
Arbitration Fairness Act of 2013
Why Legislation Is Needed Forced Arbitration Harms: Individual workers. Empirical data over thousands of cases
shows that on average employers win more often, and pay less, in arbitration Class actions. Employers use arbitration clauses to completely ban class actions, and the Supreme Court has let them do so Courts increasingly allow other remedy stripping provisions in arbitration clauses. In 2013, courts have upheld: Loser pays clauses Clauses making individuals travel long distances to arbitrate Clauses stripping prevailing individuals of rights to attorneys’ fees
Why Legislation Is Needed Supreme Court Decisions
American Express v. Italian Colors Restaurant (June 2013)
NELA: “U.S. Supreme Court Decision Will Embolden Companies To Flout Workplace Laws—Congress Must Act”
Circuit Decisions/Pending
Parisi v. Goldman Sachs (2nd Circuit)
Arbitration can be used to eliminate the pattern or practice theory”
State Supreme Court Decisions
William Schuling v. Samantha Harris (Virginia Supreme Court, September 2013)
Arbitration clause enforced against physically abused housekeeper/employee in tort action
Ending Forced Arbitration Talking Points NELA supports voluntary alternative dispute procedures, including
arbitration provided it is
Voluntary Agreed to post-dispute
NELA strongly opposes the expanding employer practice of compelling
workers to submit to pre-dispute forced arbitration provisions in order to get or keep a job.
Forced arbitration allows corporations to “opt-out” of the duly enacted law
aimed to eradicate discrimination and retaliation in the workplace, including the
Americans with Disabilities Act; Family and Medical Leave Act; Lilly Ledbetter Fair Pay Act; Uniformed Services Employment and Reemployment Rights Act (USERRA); and Whistleblower Protection Act (among others).
Ending Forced Arbitration Talking Points Forced Arbitration denies America’s workers Access to Justice because it is:
One-sided system – the deck is stacked for employers Not Voluntary Deprives workers of informed consent Important legal protections are undermined – discovery is restricted
Forced Arbitration threatens the role of the Judicial Branch of government:
Cases are addressed largely in secret instead of a public forum. Secret adjudication will prevent case-law development. Senator Sheldon Whitehouse (D-RI) addresses “The Dwindling Civil Jury” “When we lose access to the courts, corporations are effectively given a license to steal. Our ability to seek justice in the courts, even when up against the most powerful corporate interests, is an essential part of our democracy.” Paul Samakow, Washington Times, June 13, 2013
Forced Arbitration is contrary to the 7th Amendment:
Conservative columnists and some Tea Party leaders oppose Forced Arbitration for these reasons
Why The AFA? A good reminder of the importance of banning Forced Arbitration, from a NELA member’s email signature line: "[W]hat many of those who oppose the use of juries in civil trials seem to ignore [is that t]he founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary." --- Chief Justice William Rehnquist in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 343 (1979)
Your Next Steps STAY INFORMED/GET INVOLVED
Join NELA’s Grassroots Advocacy Team
Conclusion “We in America do not have government by the majority. We have government by the majority who participate.” - Thomas Jefferson
Discussion
“Lobby Day 2013 Issues”
Presenters Julie M. Strandlie, Esq. Legislative & Public Policy Director National Employment Lawyers Association Ed Leyden, Esq. Leyden Law, LLC Paul Bland, Esq. Senior Attorney, Public Justice Public Justice
NELA Lobby Day 2013
Agenda 1.
Introduction
2.
Lobby Day Issues 1.
Civil Justice Tax Fairness Act 0f 2013
2.
Arbitration Fairness Act of 2013
3.
Lobby Day Program
4.
Your Next Steps
5.
Questions/Answers
Lobby Day Issues LAWYERS PROACTIVELY MUST ENGAGE POLICY MAKERS
NELA’s Lobby Day Issues Civil Justice Tax Fairness Act of 2013 (CJTFA, S. 1224/H.R.
2509) Senate: Senators Ben Cardin (D-MD) and Susan Collins (R-ME) House: Representatives John Lewis (D-GA), Aaron Schock (R-IL),
James Sensenbrenner (R-WI), Bobby Scott (D-VA) (5 additional cosponsors) Arbitration Fairness Act of 2013 (AFA, S. 878/H.R. 1844) Senate: Senator Al Franken (D-MN) (22 cosponsors) House: Representative Hank Johnson (D-GA) (57 cosponsors)
Civil Justice Tax Fairness Act of 2013 LEGISLATIVE/LEGAL BACKGROUND
Civil Justice Tax Fairness Act of 2013
Why the Civil Justice Tax Fairness Act is Needed
1918
Revenue Act of 1918
Codified non-taxability of noneconomic damage awards in all cases of personal injury (physical and nonphysical).
1986
Tax Reform Act of 1986
Repealed income averaging, even for back pay recoveries that represent several years’ back wages.
1996
Small Business Job Protection Act
Made non-economic damage awards in civil rights cases taxable – the first time since the tax code was enacted that any such personal injury awards were taxed.
Conference Report Language CONFERENCE REPORT ON H.R. 3448, SMALL BUSINESS JOB PROTECTION ACT OF 1996 (House of Representatives - August 01, 1996) Conference Report (H. Rept. 104-737)
Follows the House Report to include as income damage recoveries for nonphysical injuries: “The House bill provides that the exclusion from gross income only applies to damages received on account of a personal physical injury or physical sickness. If an action has its origin in a physical injury or physical sickness, then all damages (other than punitive damages) that flow therefrom are treated as payments received on account of physical injury or physical sickness whether or not the recipient of the damages is the injured party. For example, damages (other than punitive damages) received by an individual on account of a claim for loss of consortium due to the physical injury or physical sickness of such individual's spouse are excludable from gross income. In addition, damages (other than punitive damages) received on account of a claim of wrongful death continue to be excludable from taxable income as under present law.
Conference Report Language CONFERENCE REPORT ON H.R. 3448, SMALL BUSINESS JOB PROTECTION ACT OF 1996 (House of Representatives - August 01, 1996) Conference Report (H. Rept. 104-737)
The House bill also specifically provides that emotional distress is not considered a physical injury or physical sickness. FN 56: It is intended that the term emotional distress includes symptoms (e.g., insomnia, headaches, stomach disorders) which may result from such emotional distress. Thus, the exclusion from gross income does not apply to any damages received (other than for medical expenses as discussed below) based on a claim of employment discrimination or injury to reputation accompanied by a claim of emotional distress. Because all damages received on account of physical injury or physical sickness are excludable from gross income, the exclusion from gross income applies to any damages received based on a claim of emotional distress that is attributable to a physical injury or physical sickness. In addition, the exclusion from gross income specifically applies to the amount of damages received that is not in excess of the amount paid for medical care attributable to emotional distress.”
Current Tax Laws Penalize Employees and Hurts Business Since 1999, NELA has led the effort to restore fairness and simplicity to the
tax code regarding
Income averaging of lump sum back/front pay awards (eliminated in 1986) Taxation of non-economic damages in employment and civil rights cases (taxed since enactment of 1996 Act) Elimination of a double taxation on attorneys fees (to both the plaintiff and the attorney)
Achieved partial victory in 2004, when double tax on attorneys’ fees
eliminated. Legislation has been introduced in every Congress (except 109th), with
bipartisan support; has not been included in an enacted tax bill. With new resolve and determination from Congressional Champions and
coalition partners, CJTFA has been reintroduced in the 113th Congress.
Past Business Support For The CRTRA The following business organizations have over the years supported the legislation: U.S. Chamber of Commerce Association of Corporate Counsel Society for Human Resource Management The Chubb Corporation American Small Business Alliance Council of Insurance Agents and Brokers
Connecticut Business and Industry Association
Legislation Evolution 1999 106th Congress
Civil Rights Tax Fairness Act, H.R. 1997
First introduced, to (1) make non-economic damages in civil rights cases non-taxable again, (2) tax lump-sum back pay awards at correct marginal tax rate, and (3) repeal double taxation of attorneys’ fees.
2001 107th Congress
Civil Rights Tax Relief Act (CRTRA), H.R. 840, S. 917
Identical bill reintroduced, except name changed to Civil Rights Tax Relief Act .
2003 108th Congress
CRTRA, H.R. 1155, S. 577
Identical bill reintroduced. 137 House and 43 Senate cosponsors.
2004
American Jobs Creation Act
Repealed double taxation of attorneys’ fees in civil rights and employment cases.
2007 110th Congress
CRTRA, H.R. 1540, S. 1689
Nearly identical bill reintroduced, to (1) make noneconomic damages in civil rights cases non-taxable again and (2) tax lump-sum back pay awards at correct marginal tax rate. Minor changes to H.R. 1155 and S. 577 to take into account American Jobs Creation Act provisions on attorneys’ fees taxation.
2009 111th Congress
CRTRA, H.R. 3035, S. 1360
Identical bill reintroduced.
Legislation Evolution 2001 107th Congress
2003 108th Congress
Feb. 2004
2004
Civil Rights Tax Relief Act (CRTRA), H.R. 840, S. 917 CRTRA, H.R. 1155, S. 577
ABA Adopts Policy in Support
American Jobs Creation Act
Identical bill (except for name) reintroduced.
Identical bill reintroduced, with the exception that the list of covered statutes modified (Violence Against Women Act deleted from list of covered statutes. High point: 137 House and 43 Senate cosponsors. 2003 MY 115 receives widespread, diverse support among ABA sections, entities, and bar associations Eliminated double taxation of attorneys fees; created an above-the-line deduction for attorneys’ fees in civil rights and employment cases, as specified in 26 USC 62(e).
Legislation Evolution 2007 110th Congress
CRTRA, H.R. 1540, S. 1689
Definition of unlawful discrimination changed to reference to 26 USC 62(e) and modification to take into account American Jobs Creation Act provision to eliminate double tax on attorneys’ fees.
2009 111th Congress
CRTRA, H.R. 3035, S. 1360
Identical bill reintroduced.
2011 112th Congress
CRTRA, H.R. 3195, S. 1781
Identical bill reintroduced.
2013 113th Congress
CJTFA, H.R. 2509/S. 1224
Name changed to reflect range of unlawful discrimination included in 26 USC 62 (e), e.g. whistleblower cases, USERRA and need to restore fairness in the civil justice system. Minor change to ensure that arbitration awards or settlements are covered. Retroactive effective date included in both House and Senate versions.
Bipartisan Support Over Several Congresses Senate Democrats
Senate Republicans
Sample list of cosponsors: Jeff Bingamen (NM) Patrick Leahy (VT) Ben Cardin (MD) Richard Durbin (IL) Dianne Feinstein (CA) Tom Harkin (IA) Maria Cantwell (WA)
Sample list of cosponsors: Susan Collins (ME) Charles Grassley (IA) Johnny Isakson (GA) Orrin Hatch (UT) Richard Burr (NC) Thad Cochran (MS) Mike DeWine (OH)
Bipartisan Support Over Several Congresses House Democrats
House Republicans
Sample list of cosponsors: John Lewis (GA) Hilda Solis (CA) John Conyers (MI) Diana DeGette (CO) Robert Andrews (NJ) Jerrold Nadler (NY)
Sample list of cosponsors: Jim Sensenbrenner (WI) Deborah Pryce (OH) Aaron Schock (IL) Marsha Blackburn (TN) Henry Hyde (IL) Ron Paul (TX) Frank Wolf (VA) Ileana Ros-Lehtinen (FL) Dave Camp (MI)
Steve Cohen (TN) Charlie Rangel (NY)
113th Congress Cosponsors H.R. 2509
S. 1224
John Lewis (D-GA)*
Ben Cardin (D-MD)*
Jim Sensenbrenner (R-WI)
Susan Collins (R-ME)
Aaron Schock (R-IL)* Bobby Scott (D-VA) Betty McCollum (D-MN) Chris Van Hollen (D-MD) Lloyd Doggett (D-TX)* Eleanor Holmes Norton (Del. D-
DC) John Conyers (D-MI) Jerold Nadler (D-NY) * Member of House Ways & Means Committee or Senate Finance Committee
Current List Of Organizational Supporters H.R. 2509/S. 1224, CIVIL JUSTICE TAX FAIRNESS ACT OF 2013 113th CONGRESS ORGANIZATIONAL SUPPORTERS
National Employment Lawyers Association (NELA) AARP Alliance for Justice (AFJ) American Association for Justice (AAJ) American Bar Association (ABA) Chicago Bar Association (CBA) Human Rights Campaign (HRC) Government Accountability Project (GAP) Illinois State Bar Association (ISBA) Lawyers’ Committee for Civil Rights under Law Massachusetts Bar Association National Asian Pacific American Bar Association (NAPABA) National Association of Consumer Advocates (NACA) National Employment Law Project (NELP) National Partnership for Women & Families National Women's Law Center (NWLC) Ohio State Bar Association (OSBA) Public Citizen The Leadership Conference on Civil and Human Rights (LCCHR)
CJTFA Talking Points The CJTFA Promotes tax fairness
There is no rational justification for taxing non-economic damages in workplace cases but not in slip and fall cases.
Benefits both employees and employers
Promotes early settlement
Saves judicial resources
Legislative Advocacy: A Key Part Of Your Litigation Toolkit MWELA and Maryland Employment Lawyers Association members were successful in obtaining a Maryland state version of the federal Civil Rights Tax Relief Act, using constituent contacts and client testimony. Next stop: the U.S. Capitol! Senator Ben Cardin (D-MD) is now the lead Senate sponsor of the bill.
Front Row, l-r: Tom Gagliardo, Theresa Devine, Vikki Rouleau, and Bruce Fredrickson. Back Row: l-r: Geoffrey Simpson, Gwen D'Souza, Josh Bowers, and Richard Renner.
Arbitration Fairness Act of 2013 LEGISLATIVE/LEGAL BACKGROUND
NELA’s Lobby Day Issues Arbitration Fairness Act of 2013 (AFA, S. 878/H.R. 1844) Senate: Senator Al Franken (D-MN) (22 cosponsors); Referred to
Senate Committee on the Judiciary. House: Representative Hank Johnson (D-GA) (57 cosponsors);
Referred to House Committee on the Judiciary.
Arbitration Fairness Act of 2013
Why Legislation Is Needed Forced Arbitration Harms: Individual workers. Empirical data over thousands of cases
shows that on average employers win more often, and pay less, in arbitration Class actions. Employers use arbitration clauses to completely ban class actions, and the Supreme Court has let them do so Courts increasingly allow other remedy stripping provisions in arbitration clauses. In 2013, courts have upheld: Loser pays clauses Clauses making individuals travel long distances to arbitrate Clauses stripping prevailing individuals of rights to attorneys’ fees
Why Legislation Is Needed Supreme Court Decisions
American Express v. Italian Colors Restaurant (June 2013)
NELA: “U.S. Supreme Court Decision Will Embolden Companies To Flout Workplace Laws—Congress Must Act”
Circuit Decisions/Pending
Parisi v. Goldman Sachs (2nd Circuit)
Arbitration can be used to eliminate the pattern or practice theory”
State Supreme Court Decisions
William Schuling v. Samantha Harris (Virginia Supreme Court, September 2013)
Arbitration clause enforced against physically abused housekeeper/employee in tort action
Ending Forced Arbitration Talking Points NELA supports voluntary alternative dispute procedures, including
arbitration provided it is
Voluntary Agreed to post-dispute
NELA strongly opposes the expanding employer practice of compelling
workers to submit to pre-dispute forced arbitration provisions in order to get or keep a job.
Forced arbitration allows corporations to “opt-out” of the duly enacted law
aimed to eradicate discrimination and retaliation in the workplace, including the
Americans with Disabilities Act; Family and Medical Leave Act; Lilly Ledbetter Fair Pay Act; Uniformed Services Employment and Reemployment Rights Act (USERRA); and Whistleblower Protection Act (among others).
Ending Forced Arbitration Talking Points Forced Arbitration denies America’s workers Access to Justice because it is:
One-sided system – the deck is stacked for employers Not Voluntary Deprives workers of informed consent Important legal protections are undermined – discovery is restricted
Forced Arbitration threatens the role of the Judicial Branch of government:
Cases are addressed largely in secret instead of a public forum. Secret adjudication will prevent case-law development. Senator Sheldon Whitehouse (D-RI) addresses “The Dwindling Civil Jury” “When we lose access to the courts, corporations are effectively given a license to steal. Our ability to seek justice in the courts, even when up against the most powerful corporate interests, is an essential part of our democracy.” Paul Samakow, Washington Times, June 13, 2013
Forced Arbitration is contrary to the 7th Amendment:
Conservative columnists and some Tea Party leaders oppose Forced Arbitration for these reasons
Why The AFA? A good reminder of the importance of banning Forced Arbitration, from a NELA member’s email signature line: "[W]hat many of those who oppose the use of juries in civil trials seem to ignore [is that t]he founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary." --- Chief Justice William Rehnquist in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 343 (1979)
Your Next Steps STAY INFORMED/GET INVOLVED
Join NELA’s Grassroots Advocacy Team
Conclusion “We in America do not have government by the majority. We have government by the majority who participate.” - Thomas Jefferson
Discussion
“Lobby Day 2013 Issues”
