Principled Labor Law by Sergio Gamonal C.;Csar F. Rosado Marzn;

Author:Sergio Gamonal C.;Csar F. Rosado Marzn;
Language: eng
Format: epub
Publisher: OUP Premium
Published: 2019-08-15T00:00:00+00:00

Nonwaiver

Introduction: A Floor of Mandatory Rights

Private arbitration of labor cases in lieu of litigation, once a suspect practice, has now become part of the “new normal” in the United States. This contemporary trend has found support in the U.S. Supreme Court’s five-out-of-nine conservative bloc,1 and a legal hook in the Federal Arbitration Act (FAA), a 19252 law that favored commercial arbitration at a time when U.S. courts were suspect of arbitration. But American activists, scholars, and policymakers have been swift to criticize the Supreme Court’s conservative bloc’s apparent and untrammeled extension of the FAA into contracts dealing with economically subordinated parties. The #MeToo movement against sexual harassment and assault has been one of the loudest critics of arbitration agreements. It has described how private arbitration cabins victims and survivors of sexual harassment and assault into a confidential, individual, employer-dominated arbitration process where perpetrators of sexual assault and harassment at work are shielded from public accountability.3 It also has a short statute of limitations and typically lower awards for winning plaintiffs.4 “Gig” economy workers’ lawyers have strongly opposed private arbitration, claiming that private arbitration blocks their capacity to represent workers in class actions.5 In fact, private arbitration is likely making it difficult for many of these workers to seek any redress at all, given how private arbitration is often stacked in favor of employers, who write the agreements and make the rules.6 Even the threshold issue of who counts as an “employee” with labor rights is threatened by this new trend with five loyal, pro-business Justices on the Supreme Court of the United States.7

This chapter supports arbitration agreements’ critics from a normative perspective. It provides a Latin American view on the issue of waiver of labor rights, including so-called “procedural” waivers in favor of arbitration. The Latin American principle of nonwaiver generally posits that rights provided to weaker parties in employment relations are not waivable.8 Waiving labor rights through asymmetric, private agreements, undoes what the legislature has mandated by law. Nonwaiver is a natural consequence of the protective principle, discussed in chapter 2, which mandates the protection of the weaker party in the employment contract.9 In other words, nonwaiver guarantees the continued validity of worker protection10 and constitutes a necessary part of workers’ rights.11

Because nonwaiver implies that employers must comply with labor law as mandated, Latin American judges use the nonwaiver principle to reform agreements destined to diminish workers’ rights.12 Moreover, Latin American labor law scholars argue that labor law is public in character; it intends to protect the individual worker, third parties, and society as a whole.13 As such, labor law is a matter of public order. Waiver through individual contract would illegitimately undermine special protections that the legislature has provided to society at large.

As in prior chapters, this chapter distills a labor law principle, here the nonwaiver principle, from the Thirteenth Amendment of the U.S. Constitution, if recognized as a labor-protective constitutional provision, the Fair Labor Standards Act (FLSA) of 1938,14 and the National Labor Relations Act (NLRA) of 1935.

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