Well, we only have two weeks left in the semester in my job class at Penn State. Honestly, I`m disappointed that I no longer blog about the interesting cases and issues we cover in class. I am looking at arbitration today, including a relatively recent third circuit statement on the application of collective arbitration agreements. A 2-step analysis in Nino v. The Jewelry Exchange, 609 F.3d 191 (3d Cir. 2010), the Court held that a labour arbitration agreement was unscrupulous and therefore unenforceable [an extended version of this notice is available lexis.com subscribers]. The analysis of lack of scruples requires a two-step analysis: the lack of scruples is a common defense in a claim for breach of contract. For example, if the plaintiff brings an infringement action against the defendant for non-performance of the contract, the defendant may bring a counterclaim in which he declares that certain clauses of the contract or the entire contract itself are unscrupulous because it oppresses the party. Read more articles on labour law on Philip Miles` Lawffice Space blog. Thus. Is the basic employment contract unscrupulous? I maintain that this is the case. First, the standard rule of employment is the doctrine of ”employment at will.” This is the doctrine that states that, unless otherwise agreed, all employers may dismiss their employees at any time and for any reason or no reason. In other words, the employer has no special obligation to its employees to continue their employment or treat them fairly under any circumstances.
The only caveat to this standard rule is that an employer cannot fire an employee for an illegal reason such as discrimination. B based on race or sex. We have written extensively on the fundamental injustice of the doctrine of employment at will. As long as employers don`t technically break a law, they can do whatever they want. The first is whether the unscrupulous aspects of ”the collective arbitration agreement … are an essential part of the agreed exchange of promises” between the parties. If the unscrupulous aspects of the clause do not include an essential aspect of the arbitration agreement as a whole, the unscrupulous provisions may be separated and the rest of the arbitration agreement applied. All employment relationships are based on a contract. Many people don`t know this. It`s easy to forget. Most of us get a job. We are working a job.
We get paid. Not much time or reason to think about the legal metaphysics of our relationship with our employer. In the landmark Connecticut case called Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., the Connecticut Supreme Court ruled, ”To begin with, we note that all employer-employee relationships that are not governed by explicit contracts involve some kind of implied `contract` of employment. There can be no serious dispute that this is a good deal; otherwise, the employee would not be working. Unfair terms may include unilateral terms or provisions that benefit one party rather than another. For example, if a party includes a limited period of liability if it violates the contract, this is likely to constitute an injustice and is unenforceable, especially if the beneficial party is the cause of the breach. Another example of unfair terms would be language hidden in the contract, whether hidden in small letters or in other words that have nothing to do with the language indicated. Such hidden language will almost always be an injustice, especially if the disadvantaged party did not know the wording of the agreement. Why is the doctrine of employment so unfair at will? One reason for this is that, in most cases, the inequality of economic bargaining power between an employer like Amazon, McDonald`s or Wal-Mart and the average employee is staggering.
A worker who applies to Amazon has absolutely no leverage to crack down on such a global financial giant. Even a senior executive is an insignificant cog in the global machinery. Whatever terms and conditions of employment these huge employers offer, that is what the employee can get. Period. SC first argued that Armendariz`s unscrupulous analysis should not apply to an agreement signed by a contract employee: it asserted that DeMelo, as an independent contractor, was not entitled to the same level of protection afforded to workers under California law. The court rejected this argument, finding that the underlying legal issue in the DeMelo Labour Commissioner`s proceedings was whether DeMelo had been properly classified as an independent contractor. The court refused to resolve this underlying issue and concluded that Armendariz`s analysis was applicable in this context. Our economic system depends on employers having a large pool of available workers who are in dire need of a job that they will work under almost any condition or for almost any wage.
In fact, the current labour shortage has been entirely attributed to the provision of federal unemployment benefits. These benefits appear to keep low-wage workers away from the workforce temporarily and cause the staff shortage mentioned above. The U.S. Chamber of Commerce recently stated the following about the $300 weekly supplement to unemployment benefits: ”The $300 benefit results in about one in four beneficiaries earning more unemployment than they have worked.” To the extent that this statement is valid, there is a serious problem here. If $300 a week is enough to beat the wages of a quarter of the workforce, then a quarter of our workers work for almost nothing! This statement shows that our business world essentially needs an available slave workforce to function! This dynamic illustrates the enormous superiority of the employer`s position and the extreme vulnerability of the average employee. Employers often use their superior bargaining position to insist that other agreements be part of the all-you-can-eat employment contract that only someone would accept ”under deception.” Non-compete agreements, forced arbitration, and other restrictive agreements are often imposed on employees as a condition of employment. (See related articles: When can non-compete obligations be applied to independent contractors? Free yourself from forced arbitration). These harmful and unfair agreements can affect an employee`s ability to earn a living after the employment relationship ends. An employer is therefore free to impose a non-compete obligation on an employee by offering consideration for employment, then to terminate the employment relationship without reason and thus withdraw the consideration previously offered and prevent the employee from finding another job in the same industry. In fact, the ”deception” supported by economic coercion is the only explanation for such an agreement.
.
