Wednesday, October 21, 2009 7:06:15 AM
The Truth About the Franken Amendment
THE FOUNDRY
Posted October 16th, 2009 at 4.01pm
When a disgruntled employee files a lawsuit that goes to court his employer must pay tens or hundreds of thousands of dollars in legal fees. Even if the courts reject the allegation as frivolous employers must still pay the lawyers. That allows unscrupulous employees to use threat of going to court to win large settlements from their bosses for baseless claims. Guilty or not guilty, the employer loses money that could have been used to expand operations and hire more workers.
Consequently many employers are turning to alternative dispute resolution methods that cost far less. Many contracts require employers and employees to take legal disputes to arbitration. There an outside arbitrator evaluates the claims and imposes remedies. Arbitrators award employees fair damages in cases of actual injustice while quickly dispensing with merit-less nuisance suits. Instead of legal bills running into the hundreds of thousands of dollars, however, arbitration usually costs only a few thousand dollars. That saves employers the money they need to create jobs while giving rogue employees no leverage to win undeserved settlements. Arbitration protects employees’ legal rights while keeping the economy moving. Everybody wins. Except the trial lawyers.
They like high legal bills. So they hate arbitration. It takes away their customers. The trial lawyer bar has long lobbied Congress to ban arbitration. They want to guarantee that employers accused of wrongdoing must always settle (with the help of attorneys) or go to court and really rack up their legal costs. Banning arbitration protects trial lawyers six-and-seven-figure lifestyles, but it sucks money out of businesses that would otherwise create jobs.
Last Tuesday the Senate gave the trial lawyers an enormous win. It passed an amendment offered by Al Franken (D-MN) [ http://senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=1&vote=00308 ] that bars any contractor with the Department of Defense from using arbitration.
The putative justification for this is a horrific case [ http://franken.senate.gov/press/?page=release&release_item=Frankens_Proposal_To_Guarantee_Sexual_Assault_Victims_Their_Day_In_Court___ ] in which Jamie Jones, a Halliburton employee in Iraq, who alleges that she was gang-raped in her bedroom by her co-workers. She claims that when she reported the attack to her supervisors, they placed her in a container under armed guard and did not let her leave or call her family for several days. Halliburton HR officials allegedly told her to “get over it” or lose her job, and she asserts that Halliburton attempted to short circuit her lawsuit by sending the case to arbitration.
Given that Franken chose to highlight her case, you might assume that the courts ruled [ http://www.karlbayer.com/blog/?p=5279 ] in Haliburton’s favor, and that she was not able to bring her claims in court instead of to an arbitrator. But then you would be wrong. The courts ruled that Halliburton could not arbitrate her claims of assault and battery, intentional infliction of emotional distress, negligent hiring, retention and supervision of employees involved in the assault, and false imprisonment.
So why did Franken offer his amendment to ban arbitration? And why an amendment that applies to every company with contracts with the DOD, not just Halliburton? Because it has little to do with ensuring that Jamie Jones gets justice. The courts have already allowed Jones’ lawsuit to go forward. This amendment is a move towards the plaintiff bar’s longstanding goal of banning dispute arbitration. But the allegations in this case are so egregious that it makes it difficult for Members of Congress to stand up for the rights of law-abiding employers.
Making it easier for lawyers to take their cut appeals to lawyers. But it comes at the expense of job creation. The money lawyers take undercuts healthy businesses and discourages new entrepreneurs from starting their own small businesses. Why would anyone start a business if they expected to spend most of the money they earn on legal bills? Why take that risk? Congress should not let the trial bar pre-judge America’s job creators guilty as charged.
© 2009, The Heritage Foundation, conservative policy research since 1973
http://blog.heritage.org/2009/10/16/the-truth-about-the-franken-amendment/ [with comments]
==========
Court rules that KBR employee’s gang rape wasn’t a personal injury ‘arising in the workplace.’
By Amanda Terkel on Sep 16th, 2009 at 11:48 am
In 2005, Jamie Leigh Jones was gang-raped by her co-workers while she was working for Halliburton/KBR in Baghdad. In an apparent attempt to cover up the incident, the company then put her in a shipping container for at least 24 hours without food, water, or a bed [ http://abcnews.go.com/Blotter/Story?id=3977702 ], and “warned her that if she left Iraq for medical treatment, she’d be out of a job.” Even more insultingly, the DOJ resisted bringing any criminal charges [ http://thinkprogress.org/2007/12/10/halliburton-covering-up-gang-rape-of-employee/ ] in the matter. KBR argued that Jones’ employment contract warranted her claims being heard in private arbitration — without jury, judge, public record, or transcript of the proceedings. After 15 months in arbitration, Jones and her lawyers went to court to fight the KBR claims. Yesterday, a court ruled in favor of Jones.” Mother Jones reports [ http://www.motherjones.com/mojo/2009/09/halliburton-loses-jamie-leigh-jones ]:
Jones argued that the alleged gang rape was not related to her employment and thus, wasn’t covered by the arbitration agreement. Finally, two years later, a federal court has sensibly agreed with her. Tuesday, the 5th Circuit Court of Appeals, in a 2 to 1 ruling, found her alleged injuries were not, in fact, in any way related to her employment and thus, not covered by the contract.
One of the judges who ruled in her favor, Rhesa Hawkins Barksdale, is a West Point grad, Vietnam vet, and one of the court’s most conservative members, a sign, perhaps, of just how bad the facts are in this case. It’s a big victory, but a bitter one that shows just how insidious mandatory arbitration is. It’s taken Jones three years of litigation just to get to the point where she can finally sue the people who allegedly wronged her. It will be many more years before she has a shot at any real justice.
“We do not hold that, as a matter of law, sexual-assault allegations can never ‘relate to’ someone’s employment,” wrote the court. “For this action, however, Jones’ allegations do not ‘touch matters’ related to her employment [ http://www.ca5.uscourts.gov/opinions%5Cpub%5C08/08-20380-CV0.wpd.pdf ], let alone have a ’significant relationship’ to her employment contract."
© 2009 Center for American Progress Action Fund (emphasis in original)
http://thinkprogress.org/2009/09/16/jones-sue-kbr/ [with comments]
==========
in addition to (items linked in) earlier posts in this string (etc), see also (items linked in) http://investorshub.advfn.com/boards/read_msg.aspx?message_id=2765155 and preceding and following -- in particular (. . .) http://investorshub.advfn.com/boards/read_msg.aspx?message_id=6676837 and following
THE FOUNDRY
Posted October 16th, 2009 at 4.01pm
When a disgruntled employee files a lawsuit that goes to court his employer must pay tens or hundreds of thousands of dollars in legal fees. Even if the courts reject the allegation as frivolous employers must still pay the lawyers. That allows unscrupulous employees to use threat of going to court to win large settlements from their bosses for baseless claims. Guilty or not guilty, the employer loses money that could have been used to expand operations and hire more workers.
Consequently many employers are turning to alternative dispute resolution methods that cost far less. Many contracts require employers and employees to take legal disputes to arbitration. There an outside arbitrator evaluates the claims and imposes remedies. Arbitrators award employees fair damages in cases of actual injustice while quickly dispensing with merit-less nuisance suits. Instead of legal bills running into the hundreds of thousands of dollars, however, arbitration usually costs only a few thousand dollars. That saves employers the money they need to create jobs while giving rogue employees no leverage to win undeserved settlements. Arbitration protects employees’ legal rights while keeping the economy moving. Everybody wins. Except the trial lawyers.
They like high legal bills. So they hate arbitration. It takes away their customers. The trial lawyer bar has long lobbied Congress to ban arbitration. They want to guarantee that employers accused of wrongdoing must always settle (with the help of attorneys) or go to court and really rack up their legal costs. Banning arbitration protects trial lawyers six-and-seven-figure lifestyles, but it sucks money out of businesses that would otherwise create jobs.
Last Tuesday the Senate gave the trial lawyers an enormous win. It passed an amendment offered by Al Franken (D-MN) [ http://senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=1&vote=00308 ] that bars any contractor with the Department of Defense from using arbitration.
The putative justification for this is a horrific case [ http://franken.senate.gov/press/?page=release&release_item=Frankens_Proposal_To_Guarantee_Sexual_Assault_Victims_Their_Day_In_Court___ ] in which Jamie Jones, a Halliburton employee in Iraq, who alleges that she was gang-raped in her bedroom by her co-workers. She claims that when she reported the attack to her supervisors, they placed her in a container under armed guard and did not let her leave or call her family for several days. Halliburton HR officials allegedly told her to “get over it” or lose her job, and she asserts that Halliburton attempted to short circuit her lawsuit by sending the case to arbitration.
Given that Franken chose to highlight her case, you might assume that the courts ruled [ http://www.karlbayer.com/blog/?p=5279 ] in Haliburton’s favor, and that she was not able to bring her claims in court instead of to an arbitrator. But then you would be wrong. The courts ruled that Halliburton could not arbitrate her claims of assault and battery, intentional infliction of emotional distress, negligent hiring, retention and supervision of employees involved in the assault, and false imprisonment.
So why did Franken offer his amendment to ban arbitration? And why an amendment that applies to every company with contracts with the DOD, not just Halliburton? Because it has little to do with ensuring that Jamie Jones gets justice. The courts have already allowed Jones’ lawsuit to go forward. This amendment is a move towards the plaintiff bar’s longstanding goal of banning dispute arbitration. But the allegations in this case are so egregious that it makes it difficult for Members of Congress to stand up for the rights of law-abiding employers.
Making it easier for lawyers to take their cut appeals to lawyers. But it comes at the expense of job creation. The money lawyers take undercuts healthy businesses and discourages new entrepreneurs from starting their own small businesses. Why would anyone start a business if they expected to spend most of the money they earn on legal bills? Why take that risk? Congress should not let the trial bar pre-judge America’s job creators guilty as charged.
© 2009, The Heritage Foundation, conservative policy research since 1973
http://blog.heritage.org/2009/10/16/the-truth-about-the-franken-amendment/ [with comments]
==========
Court rules that KBR employee’s gang rape wasn’t a personal injury ‘arising in the workplace.’
By Amanda Terkel on Sep 16th, 2009 at 11:48 am
In 2005, Jamie Leigh Jones was gang-raped by her co-workers while she was working for Halliburton/KBR in Baghdad. In an apparent attempt to cover up the incident, the company then put her in a shipping container for at least 24 hours without food, water, or a bed [ http://abcnews.go.com/Blotter/Story?id=3977702 ], and “warned her that if she left Iraq for medical treatment, she’d be out of a job.” Even more insultingly, the DOJ resisted bringing any criminal charges [ http://thinkprogress.org/2007/12/10/halliburton-covering-up-gang-rape-of-employee/ ] in the matter. KBR argued that Jones’ employment contract warranted her claims being heard in private arbitration — without jury, judge, public record, or transcript of the proceedings. After 15 months in arbitration, Jones and her lawyers went to court to fight the KBR claims. Yesterday, a court ruled in favor of Jones.” Mother Jones reports [ http://www.motherjones.com/mojo/2009/09/halliburton-loses-jamie-leigh-jones ]:
Jones argued that the alleged gang rape was not related to her employment and thus, wasn’t covered by the arbitration agreement. Finally, two years later, a federal court has sensibly agreed with her. Tuesday, the 5th Circuit Court of Appeals, in a 2 to 1 ruling, found her alleged injuries were not, in fact, in any way related to her employment and thus, not covered by the contract.
One of the judges who ruled in her favor, Rhesa Hawkins Barksdale, is a West Point grad, Vietnam vet, and one of the court’s most conservative members, a sign, perhaps, of just how bad the facts are in this case. It’s a big victory, but a bitter one that shows just how insidious mandatory arbitration is. It’s taken Jones three years of litigation just to get to the point where she can finally sue the people who allegedly wronged her. It will be many more years before she has a shot at any real justice.
“We do not hold that, as a matter of law, sexual-assault allegations can never ‘relate to’ someone’s employment,” wrote the court. “For this action, however, Jones’ allegations do not ‘touch matters’ related to her employment [ http://www.ca5.uscourts.gov/opinions%5Cpub%5C08/08-20380-CV0.wpd.pdf ], let alone have a ’significant relationship’ to her employment contract."
© 2009 Center for American Progress Action Fund (emphasis in original)
http://thinkprogress.org/2009/09/16/jones-sue-kbr/ [with comments]
==========
in addition to (items linked in) earlier posts in this string (etc), see also (items linked in) http://investorshub.advfn.com/boards/read_msg.aspx?message_id=2765155 and preceding and following -- in particular (. . .) http://investorshub.advfn.com/boards/read_msg.aspx?message_id=6676837 and following
Greensburg, KS - 5/4/07
"Eternal vigilance is the price of Liberty."
from John Philpot Curran, Speech
upon the Right of Election, 1790
F6
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