Hello, once again! On this Election Day, I must write that for the cause of this week’s subject, I am split in two. In what has been dubbed “The Franken amendment” Senator Al Franken from Minnesota put his handiwork to the Job Arbitration Bill labeled H.R. 3326.

To put this addition in a nut shell, it would withhold defense contracts from companies if they restrict their employees from taking certain cases to court by using “mandatory arbitration.”

For those who may not know, “Arbitration” is a committee-like third party-esque way to resolve cases without judge and jury. Basically, it is a watered down version of a school board meeting – a place where people try to shake hands and cut deals with mutual compromise. 

So you can read the amendment for yourself before I critique it: 

“Sec. 8104: (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention. 

(b) The prohibition in subsection (a) does not apply with respect to employment contracts that may not be enforced in a court of the United States.”

First of all, I believe anyone who is a victim of violent or sexual natured crime should be able to have their day in court. 

They should have the right to stand before a judge or a jury and tell their story in front of their attacker. 

Arbitration, in these extreme instances is as wrong as the crimes that have been committed themselves. 

It is, I believe, giving a rapist or a molester a pass when you send such cases before a council and not a prosecutor. 

However, upon reading this Amendment certain “red flag” questions arise (as usual) 

1) What is the definition of “infliction of emotional distress” under the law? 

Could frightening someone with a harmless prank be categorized as “emotional distress?”

2) What is the definition of “negligent hiring” under the law? 

Could you face judge and jury because someone wasn’t hired by what the applicant says was “error or forgetfulness?”

3) What is the definition of “False imprisonment” under the law? 

Could you be subpoenaed to a court of law for detaining someone for health or safety reasons?

4) Will this become a greatly cited stepping-stone to pass more laws and legislation to fundamentally change the judicial system in favor of fat-cat trial attorneys?

5) Will this create even more baseless and frivolous law suits to clog the judicial system by people looking for a check?

To further elaborate on arbitration, it costs much less for both parties and in most cases, is more rapidly resolved than a traditional judge and jury. 

The problem with such an amendment like the Al Franken attachment is it tilts in favor of “big time” attorneys looking to gain much more than what they could by compromising. A win at arbitration pays much less than a win at trial.  

My fear is with the passage of this bill, will they begin to use this as a legal stance and excuse to try to stop arbitrary powers all together? 

It is a well known fact that many interest groups and big law firms have lobbied congress for decades, to end arbitration in all aspects of the legal system. 

These said attorneys are not average and common but rather 6 and 7 figure makers with a mutual interest to protect their lifestyle regardless of who it hurts.    
With that being said, an average trial costs an employer, tens if not hundreds of thousands of dollars in legal fees, win or lose.

Many times employers that are forced into trial have to lay off workers, downgrade pay scales, and make drastic cuts just to survive the wake of the judicial circus. 

For every legal action that arises, everyone in a company is hurt especially in smaller contractual businesses that this bill is designed to greatly effect. 

On the hypothetical, what if there began a flood of new claims by those looking to exploit this newly found loophole by making bogus allegations and imaginary outcries that overwhelm our legal system. 

If this took place, it would bankrupt many businesses and make countless people lose their jobs because of legal malice. 

With the passage of this amendment, it could soon open the door throughout America, making this example a reality in all aspects of business, not just federal contractors.  

In closing, I absolutely believe those who work for contractors as well as any other employer that are victims of horrid crimes such as rape, should most undoubtedly have the right to stand before a judge or jury and tell their story. 

But, this Amendment with its vague language; I believe will be used in the future as an excuse to create more laws and legislations that create hardship on employers. 

It will eventually, I believe, be cited by many politicians, lawyers, and ultimately the Supreme Court in a power play to remove all arbitrary powers from the hands of the people. 

When this happens, it will cause our unemployment rates to skyrocket by an influx of unwarranted, undeserved lawsuits throughout America by disgruntled employees wanting a windfall, drawing the final curtain to make places of business shut their doors forever. 

A legislation passed today just may be tomorrow’s tie-breaker for the cause of the Government and not the cause of “We the people.”      

Send me your comments to crusadersview@yahoo.com or at my Web site http://www.crusadersview.bravehost.com.
WCP 11.03.09