On Thursday, after months of protesting by thousands of its workers, Google agreed to stop requiring workers to submit to forced arbitration of employment disputes. The company had previously taken this step only with regard to sexual harassment cases, and now workers facing discrimination, wage theft, or other violations will also have the option of bringing their claims in court, including through class actions. Other companies should emulate this extremely positive development, and Google deserves credit for doing the right thing (albeit under duress).
In a nutshell, here’s why arbitration is a problem for workers: Employees win less often in arbitration than in court and recover less money in arbitration when they do win. There’s no public record, limited fact-finding, and no appeal rights in arbitration. One scholar estimates that hundreds of thousands of workplace rights cases are not brought each year because of forced arbitration. Often workers also must sign a class waiver, giving up the right to bring a class action, which makes it even harder to find a lawyer or bring a case.
Thursday’s policy change by Google came about because of collective action and pressure by Google’s workers. That pressure is unlikely to abate because of the company’s announcement; the workers are highly motivated, and there’s still plenty of work to do.
A number of questions remain about precisely how Google (or any company taking a similar step) will stop requiring forced arbitration in practice. Google appears to be taking the position that it will still offer employees the option of arbitration, and the devil is always in the details. Even without forcing arbitration as a condition of employment, a company could still end up pushing workers into it without their full knowledge or awareness. Giving up a critical civic right—access to the courts to address violations of core workplace rights—should be a conscious, knowing decision, not the result of missing a check box in a mountain of boilerplate forms.
Will prospective employees be given information about this choice as part of a job offer and have time to consider the options, or will it be hastily communicated on the first day of work along with a mountain of human resources forms to complete? Will it be buried in minuscule print somewhere, with legalistic and inaccessible language? Will there be a default selection of arbitration (so that employees have to opt out in order to preserve their access to courts), or a default selection of court access (so that employees have to affirmatively choose arbitration)? Or no default at all, just two options? Will workers have a one-time opportunity to opt out of arbitration, or will they have the option at a future date to change their selection? And if there’s an option to change, will that be ongoing, or an annual opportunity (as occurs with health insurance enrollment)?
Ideally, workers would be given plain language, reasonable fonts, and accessible information about arbitration and other aspects of their employment contracts well before day one on the job, with no default favoring arbitration and the opportunity to opt out in the future.
And what will Google’s optional arbitration look like? The rules of the main arbitration associations, AAA and JAMS, have limits on how much workers have to pay in employment-related arbitration, in order to ensure access. But sometimes employment contracts require splitting fees; those fees can run into tens of thousands of dollars, and if those fees must be shared by the employee, that’s a serious impediment to worker access. Also, will Google’s contract specify which law applies, or a geographic location for arbitration? It needs to be fair and accessible to workers, which isn’t always the case. (In a laugh-or-you’ll-cry example of this, Uber’s contract with drivers in South Africa specified that the law of the Netherlands applies for disputes, and any claims were to be submitted to the International Chamber of Commerce for Mediation and Arbitration.)
Google said it will inform its contractors of this decision, but it will not require them to take similar action in relation to contractors’ own employees. Why not? Google famously utilizes contractors for a tremendous portion of its ongoing work. Why should those workers, already deprived of employment status with the company and all of the related benefits, also be subject to forced arbitration, when Google itself could easily use its own power to make contractors give the option of court access to their employees? This is surely one of the next frontiers for the company’s activist employees.
Finally, Google still hasn’t acceded to one critical demand of the about 20,000 workers who walked out in the fall: employee representation on the company’s board. This is a persistent and powerful group of workers. They’re motivated and committed, and they’ve had more than a taste of success. It’s pretty clear they’re not giving up. So why not go ahead and make this move as well? It’s likely to benefit the company in the end, anyhow, by creating a method for workers to share valuable insights on the company’s operations and growth.
Despite the above lingering questions, Thursday’s announcement is still a tremendous victory for the thousands of workers who fought hard for this result. Other companies, large and small, tech and brick-and-mortar, should follow Google’s lead. Five years ago, forced arbitration wasn’t an issue everyday employees thought much about; now it has become an issue around which workers are organizing. The current situation, in which too many workers have no access to court, class actions, or meaningful redress for violations, is simply not tenable in the long term.
Most importantly, in addition to this lesson for other companies, Thursday’s announcement can be instructive and inspiring for workers across the country. Google’s employees have already moved mountains by standing up together against Goliath, and they’re undoubtedly ready to move some more.