Some of you may have heard slight mutterings in the media regarding the recent Supreme Court decision that allows private companies to force their workers to sign mandatory arbitration agreements. It sounds pretty boring. Let me rephrase: The Supreme Court just gave private companies the power to treat their workers anyway way they want without any regard for federal, state or local laws.

The court decision was applied to three separate cases, all of which involved similar arguments where an employer violated state or federal labor laws. At least two of the cases involved an employers refusal to pay overtime as required by state laws. You would think this would be any easy one… If the law says they have to pay, they have to pay, right?

However, in all three cases, the employers simply refused to comply with these laws. OK, so this is where the employee takes the dispute to court, right?

Well in all three cases, the workers had signed arbitration agreements which according to the Federal Arbitration Act of 1925 means that the employees have to duke it out with their employers in private arbitration. That basically means the employee and the employer sit down to work out a “deal”. Of course the employer always has the leverage, like… “do you want to keep your job?”. Without the protection of the law, they really don’t have any other leverage.

In 1935 this had become such a pressing problem that Congress enacted the National Labor Relations Act, which provided the worker with the right to collectively arbitrate. In other words, in answer to that question about keeping a job the worker can now say, “do you want to keep producing?” Collective arbitration is what made the U.S. such a great place to work. You didn’t even need government regulation because entire crews can bargain with their employers on an equal footing.

But in recent years, some companies have started adding a clause to their arbitration agreements saying that workers can only arbitrate as individuals, not collectively. But isn’t that a violation of the National Labor Relations Act? Why, yes it is but underpaying workers is also a violation of law so why would this be any different? The challenge is finding a way to enforce the laws and to do that you have to take it to court, but wait… they CAN’T take it to court because of the arbitration agreement.

So in 2018, the four liberal members of the Supreme Court, while judging appeals, tried to make the case that the provision in the National Labor Relations Act to allow collective arbitration supersedes FAA’s command to enforce arbitration agreements. This was essentially the only path back to any kind of leverage a worker might have.

But the majority opinion, led by Neil Gorsuch, stated that the NLRA only provided the right to collectively bargain, not to supersede the FAA. The contention is that this interpretation is too literal, which does make sense… Think about it, Congress in 1935 obviously didn’t take in to consideration the possibility that a company would simply write a clause in their arbitration agreements that puts them beyond the reach of very law they were enacting.

Nevertheless, all three cases were decided on a soft argument that because 77 years passed from the enactment of the NLRA to the first case where it was used to challenge the FAA, the legitimacy of the challenge is “doubtful”. The conservatives took the “when in doubt go with what is clear” option, saying that the FAA clearly forces arbitration, with no option to appeal. Then they took a quick lean on the “don’t legislate from the bench” argument, even admitting that while the decision may not result in the best policy, a different decision would require a different law.

So from a technical stand point, I can understand the decision but from a moral stand point it’s pretty disappointing, especially given how “arguable” the decision is and how significant the impact will be.

20. May 2018 · Categories: Uncategorized

A recent poll question sponsored by USA Today/Suffolk University has caused quite a stir in the media…

President Trump has called the Special Counsel’s investigation a ‘witch hunt’ and said he’s been subjected to more investigations than previous presidents because of politics. Do you agree?

Unless they are tuned for detecting bullshit, poll respondents will not always notice that this is a loaded question. This should always be suspect when the question is a simple yes or no reference to a separate sentence that actually says two different things. So what are we agreeing with? That the investigation is a ‘witch hunt’ or that Trump has been subjected to more investigations than previous presidents? What if you don’t agree that the investigation is a witch hunt but recognize the fact that Trump has been under more investigations than previous presidents?

The poll leaves no room for specific answers and instead asks for only one simple “yes” or “no”. Another key to this technique is to base the “convincing” statement on facts. At this point in time, there are no measurable ways to qualify Trump’s assumption that the investigation is a witch hunt, yet the number of investigations into presidents past and present is a matter of fact and people respond more readily to information that they can recognize as such. So it’s a question that uses a factual statement to solicit a “yes” answer that gives a piggy-back ride to a non-factual statement that by itself might not have encouraged the same response.

But this isn’t where the trickery stops.

It’s hard to imagine that when USA Today partnered with Suffolk University, they weren’t thinking ahead to publishing the results. Sometimes that can add another level to the deception, the misleading headline. Here’s how it looked on USA Today…

Poll: Half of Americans say Trump is victim of a ‘witch hunt’ as trust in Mueller erodes

https://www.usatoday.com/story/news/politics/2019/03/18/trust-mueller-investigation-falls-half-americans-say-trump-victim-witch-hunt/3194049002/

There is also this one from the National-Review, referencing the same poll…

Poll: 50 Percent Say Mueller Investigation Is ‘Witch Hunt’

https://www.nationalreview.com/news/poll-50-percent-say-mueller-investigation-is-witch-hunt/

Notice how in both headlines, the factual statement about the number of investigations completely disappeared? The job of that statement is done, it got “yes” answers from 50% of the respondents but it’s obviously the other statement that gets all the attention in the headline.

So nice job USA Today,

 

In recent years, a war over social justice as been raging in the IT industry and one battleground in this war appears to be the codes of conduct that organizations sometimes ask their workers to comply with.

Business Insider just published an article describing one skirmish in particular.

This story tells of a contributor to the LLVM project who left because he had a political conflict with their new code of conduct. And the way I see it, the article also illustrates how people just need to get a grip. There’s nothing wrong with a code of conduct that sets the expectation that people will be nice to each other unless they have a personal problem with being nice, in which case… Who need’s them?

Sometimes, dissenters appeal to the moral grounds of freedom and find fault with trying to force people to be accepting, but that seems a bit over the top to me, especially compared to the long-standing existence of other policies like dress-codes that are no less intrusive yet receive comparatively little blow-back. Indeed, complaining about having to be nice to others is no more ridiculous than complaining that you can’t come to work in your pajamas. Both policies do in fact obstruct your total freedom, but so does the simple act of sharing a world with others.

Often times, the opposition to a code of conduct is really about something else. Rafael Avila de Espindola, for instance, is described in the article as the developer who left the LLVM project due to his personal conflict with the project’s new code of conduct but when you look at his reasoning, as he explained them, we can see that he is more generally pissed off what he calls the “Social INjustice Movement”.

(full story here)

The little play on words… ‘seems common vernacular among those who have been harboring extreme political hangups. Indeed, according to Avila, “the last drop” was the association LLVM was establishing with an organization called Outreachy (I want to talk about that name, but I won’t), that offers paid internships to people in groups that are considered to be underrepresented. Avila describes them as “an organization that openly discriminates based on sex and ancestry”.

Well, of course they do… When the industry in general discriminates one way based on sex and ancestry, a common response is to counter with discrimination the other way based on the sex and ancestry. Condemning them for doing so is no less ridiculous than condemning someone for using violence to defend himself against violence. At least in my opinion.

And it’s then it’s LLVM’s job to interview the candidate interns and further discriminate based on experience, ability and willingness.

I can’t even begin to imagine how to gauge the benefits and consequences of countering one type of discrimination with another type of discrimination but we don’t need to… and that’s pretty much my point. The association with Outreachy has nothing to do with the code of conduct Avila was refusing to accept; for him, the code of conduct is probably more a symbolic representation of the social justice movement as a whole, which I guess is OK on some level but not so much when you’re actually making false accusations.

Avila very clearly stated that through the code of conduct “the community tries to welcome people of all ‘political belief’. Except those whose political belief mean that they don’t agree with the code of conduct.”

Which would be what? The political belief that we shouldn’t expect people to be nice to each other?

Here’s the code of conduct that Avila has such contention with.

  • be friendly and patient
  • be welcoming
  • be considerate
  • be respectful
  • be careful in the words that you choose and be kind to others
  • when we disagree, try to understand why.

Seriously Raphael?