Susan Fowler, the former Uber engineer whose blog post about the company’s troubling internal workings eventually led to the ouster of its CEO Travis Kalanick, has a new message for the Supreme Court: get rid of arbitration agreements.
In a development first reported on by The Recorder, Fowler’s legal team at the San Francisco-based firm Baker Curtis & Schwartz has filed an amicus brief in three high court cases, asking the justices to consider that class and collective action bans in workplace arbitration agreements violate federal labor laws.
The issue Fowler is trying to tackle — and one that we’ve written before — is the inability of Uber’s employees to join class-action lawsuits and otherwise fight the company in court. Uber instead forces employees into individual arbitration, a maneuver designed to move a lawsuit off its path toward a courtroom and onto the desk of an adjudicator, whose verdict is legally binding and completely confidential. No one ever hears about employees’ grievances, so there’s little incentive for companies to fix what’s broken.
Uber is far from alone in employing the tactic. Employment attorneys we’ve interviewed say that something like 80 percent of tech companies compel their employees into arbitration.
That doesn’t make it right, argues Fowler, via her attorneys. In fact, says her brief: the arbitration agreement, and the attendant “class-action waiver” that Uber asks employees to sign when they start their careers with the company, “takes away from these workers the concerted activity in which they are most likely to engage, and from which they are most likely to benefit: The right to engage in collective litigation.”
Her lawyers’ argument against them is three-pronged, stating that:
As the Uber example demonstrates, companies do not require arbitration agreements with class action waivers to resolve disputes “cheaply or quickly.” Companies require class action waivers to limit or eliminate the legal risk associated with systemic — and potentially or certainly illegal — employment practices.
The right to litigate collectively is particularly important in the 21st century in that such litigation is the most readily available means for modern day workers to act in concert to improve their working conditions. Much of the modern workforce cannot reasonably engage in the “traditional” concerted activity of strikes or picketing.
Collective litigation — when meritorious — usually results in settlement negotiations (or bargaining), a “collective” settlement agreement, an improvement in working conditions, and a reduction of industrial strife. Without the right to collective citation, there will be more systemic employment law violations, less effective ways to remedy them, and the balance between companies (i.e., capital) and talent (i.e., labor) will shift firmly in favor of capital.
Certainly, employment attorneys not involved in the case agree, particularly given that arbitrations tend to favor businesses — with arbitrators commonly considering companies their clients.
A recent case in Silicon Valley shows how a disagreement, when allowed to be aired in a courtroom setting, can be an impetus for change.
When former Kleiner Perkins Caufield & Byers investor Ellen Pao set out to sue her former employer over gender discrimination in 2012, Kleiner tried to move the case into arbitration. It failed on a technicality (covered here, if you’re curious).
Though Pao eventually lost her case against Kleiner when it was finally tried in 2015, it had ripple effects on the broader startup industry that continue to be felt today. In fact, many consider Pao, who recently published a book about the ordeal, the reason that gender and harassment is finally being examined — and eradicated — in Silicon Valley, case by case.
You can check out the brief in its entirety here.
The Recorder’s piece is also worth reading.