June 12, 2006 – A local law is needed to protect the rights of employees who are forced to sign "arbitration agreements" in order to be hired, according to Sen. Ronald E. Russell.
During a Committee on Labor and Agriculture meeting Monday, Russell said such agreements are "unconscionable" and are designed to take away an employee's right to a fair jury trial should they choose to sue their employer for unfair labor practices.
To address this issue, Russell introduced a bill designed to render such agreements "unenforceable" in a court of law if they are unwillingly, or "unknowingly," signed by employees. "This is a landmark piece of legislation," he said.
But he added that it is much needed, "especially since we have reached the point where the U.S. Supreme Court has, in its wisdom, decided to favor arbitration agreements over an employee's right to a fair trial. Therefore cases involving sexual harassment, product liability and other discriminatory matters now go straight to an arbitrator instead of going to court."
Attorney Lee Rohn, testifying in support of the bill, explained that when an arbitration agreement is signed, the right of employee to hire a lawyer or file a complaint with the Equal Employment Opportunity Commission or the local Labor Department is removed. Instead, that employee has to hire an arbitrator from the American Arbitration Association to handle the complaint.
"You have to pay that person yourself – that's like $1,800 a day – and they hear the case and make the final decision," she said.
Rohn added that this process particularly disenfranchises local workers. "Not a single one of these arbitrators are local or speak West Indian – usually they come from New York or New Jersey. And because these large companies feel that the arbitrators are so weighted in their favor – coupled with the fact that the workers aren't allowed to have lawyers to handle their case – there's no way that the employee can win."
She said there are "very few ways" to overturn an arbitrator's decision. "The only way to do that is prove that the arbitrator had a bias or has done something wrong," she said.
Rohn explained that the arbitration issue is particularly a problem on St. Croix, where high unemployment rates are augmented by the fact that large companies do not allow residents to apply for a job unless they sign an arbitration agreement. This practice, she said, has caused an increase in the number of discrimination, personal injury and toxic tort cases throughout the territory.
"Hess (Hovensa) right now is as bad as I've ever seen it," she said. "For example, the company recently advertised a job opening for an area one supervisor. The position was given to a white statesider who had less experience than a local worker who applied for the same position. Then, after the statesider was given the position, Hess posted the job and interviewed local workers, knowing that they didn't have a chance in hell of getting in there. This has to stop – it's discrimination."
Rohn was passionate in her remarks about toxic tort cases – which deal with workers who are exposed to chemical substances. "It's extremely dangerous working out there at the refinery," she said. "And now the courts are saying that if you're exposed to toxic substances, then you have to go straight to arbitration."
Building on Rohn's statements, Gregory Laforce, a former employee at a construction company that subcontracts with Hovensa, said he was fired on April 6 after leaving early from work.
"After arriving at the refinery, there was an emergency oil spill which occurred around 7:15 a.m.," he explained. "I called everyone inside of my section to evacuate, and we went to the east side of the building, where the wind was blowing in the other direction."
Laforce said that after standing outside until 11:30 a.m., he and his fellow co-workers were ordered to go back to work by a foreman on the site. "I asked him if he had called someone to come in and inspect," Laforce said. "He said no. So after being exposed to those chemicals from 7:30 in the morning, without being given protection, we had to go back on the job."
Laforce said around 1 p.m., he began feeling sick and asked the foreman if he could sign a leave of absence slip and go to the doctor. "The doctor told me that my blood pressure and blood sugar levels were up," he said. "So I went home to relax. The next day I was fired, along with eight other people."
Laforce said he could not file charges against Hovensa because "arbitration papers were signed behind our backs by the company."
"But if you don't sign the papers, you don't have a job," he said.
Senators voted unanimously to move the bill onto the Rules Committee for further consideration. During that time, the bill would also be amended to address concerns raised by Legislative legal counsel, who said during the meeting that federal law already mandates arbitration agreements to be entered into "knowingly and voluntarily" by the employer and employee.
Rohn said that the federal law gives a loose definition of the phrase "knowingly and voluntarily." She said that since the federal law applies only to states, and not to territories, a local statute addressing the problem should be developed.
Present during Monday's meeting were Sens. Craig W. Barshinger, Norman Jn Baptiste, Terrence Nelson and Russell.
Sens. Pedro "Pete" Encarnacion, Neville James and Celestino A. White Sr. were absent.
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