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Comment by buro9 | Hacker News Reader

The important bit:

How did IBM get around the legal requirement for the disclosures? With a move that even critics acknowledge is ingenious.

The company’s pre-2014 layoff documents required employees receiving severance to waive all bias claims based on “race, national origin, ancestry, color, creed, religion, sex, sexual orientation, pregnancy, marital status, age... disability, medical condition, or veteran status.” The new documents deleted “age” from the waiver list. In fact, they specifically said employees were not waiving their right when it came to age and could pursue age discrimination cases against the company.

But, the new documents added, employees had to waive the right to take their age cases to court. Instead, they had to pursue them through private arbitration. What’s more, they had to keep them confidential and pursue them alone. They couldn’t join with other workers to make a case.

Forced arbitration continues to be an awful thing that companies foist on employees to strip them of their rights.

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What's especially clever here is that most people will sign to get the severance package (it's better than nothing), leaving the group who refuses to sign too small to mount an effective legal defense against age discrimination (the company can just outspend them in court). Meanwhile the company can just say "we offered people a choice, and they chose" and pretend like they did nothing wrong.

This is exactly the sort of thing unions are supposed to protect people from. If something like this happened in my country there would be a general strike and the country would be at a standstill.

> If something like this happened in my country there would be a general strike and the country would be at a standstill.

That sounds too good, and too progressive, to be true. Which country do you live in?

Belgium. We have a lot of strikes.

To clarify: by something like this I meant legislation that allows behavior like this to be legal. A single company acting badly would lead to a local strike, probably not a general strike (those are for forcing government policy changes).

It's well understood that the trend is toward stripping employee's of their rights in favor of large Corporations.

This, IMO, seems to have coincided with the Citizens United decision. Since that time Corporations have had many favorable outcomes from both parties.

Don’t be a cynic painting everyone with the same brush.

Specifically, President Obama signed an executive order making arbitration clauses in employment cases unenforceable: http://www.slate.com/articles/news_and_politics/jurisprudenc...

The next president then reversed this. There are extremely clear distinctions between the parties, and this issue is actually a perfect example.

> The next president then reversed this.

Just out of curiosity: This is very uncommon in modern democracies, isn't it?

In most European countries (and maybe also in the US?) each newly elected government shows enough respect for the previous government by not reversing laws established just 1-3 years ago. They usually either concentrate on different topics, or restrict themselves to refinements and corrections of existing laws.

And there's some good reason for that: You don't want a country's set of laws switching between two versions every 4-5 years without making any progress.

However, since that taboo has been broken by now, maybe the next US president would have the courage to do the same with everything the current president did?

These were executive orders, not legislation. It is quite common for new administrations to rescind or override executive orders of previous administrations. EOs usually direct an administration to enforce department rules a certain way and a new administration is within their right to interpret them another way. Enacting legislation that specifically spells out how certain rules are to be carried out is the best way to make them concrete. Nowadays it is very difficult to enact any legislation let alone remove it.

> These were executive orders, not legislation. It is quite common for new administrations to rescind or override executive orders of previous administrations.

OTOH, the US having both a weak party system and a separation of power system makes it so that, to return to the upthread question about modern democracies, it does a lot more through executive orders than many modern democracies, which often have a strong-parties parliamentary system or a weaker Presidency, so that the executive has either less ability or less motivation to issue executive orders for matters that might be directly addresses by legislation.

> it does a lot more through executive orders than many modern democracies

Obama did a lot more through executive orders than his predecessors, in large part due to Congress obstructing all policy much more than its predecessors. IIRC, at a certain point he turned to executive orders to implement policy the best he could.

Also, most other modern democracies use parliamentary systems, in which the executive always has the majority in the legislature. In those cases, executive orders are less needed because the legislature and executive are much more likely to agree.

this wasn't a law, though, it was an executive order, which is just a decision by the president on how to run the executive branch.

in this case, it only applied to companies that had contracts with the federal government for more than $1 million. basically, Obama ordered his departments to stop doing business with companies that had certain arbitration clauses. Trump removed this restriction.

i would expect a ton of Trump's executive orders to be overturned if the next president is a Democrat.

it's much harder and less likely to repeal an actual law passed by Congress.

The problem is that an executive order isn't exactly a 'law'. It's the president ordering the executive branch about what to do, so it has no inherent permanence.

I wouldn't expect most executive orders to stay the same here if the president changes parties. But that's a statement about what I expect, not about how things ought to be.

Non American here. What is Citizens United decision and why it is important?

Citizens United was a Supreme Court decision that said money was free speech. The result is that it is perfectly legal to “bribe” U.S. politicians now.

Not evenly remotely true. It means that citizens don't lose their free speech rights when they form groups.

It was about a group who made a "documentary" about hilary clinton and were banned from releasing it near the election.

Most people don't know the background of the Citizens United case. Since you do, then I'd wager that you also know the effects that it's had on campaign finance laws. The ruling overturned existing laws that limited campaign contributions from corporations while also overruling other cases that had previously limited free speech rights.

> It means that citizens don't lose their free speech rights when they form groups.

That's basically what the court's majority opinion stated. But the dissenting opinion also stated that the ruling provides more opportunities for corruption and for laws to be "bought and sold". So to say that GP's comments are "Not evenly remotely true" is disingenuous.

But the impact of the Citizens United decision has allowed dark money to flood into U.S. political system in the form of anonymous spending from "independent" political action groups.

Dark money can be used for purposes akin to bribery since the speech of the group has been interpreted as political influence. While the money doesn't go directly to the candidate, it is used for their benefit or detriment during elections.

It just so happens that outside political spending has risen dramatically since the SCOTUS Citizens United decision in 2009.[0]

[0] https://www.opensecrets.org/outsidespending/index.php

> citizens don't lose their free speech rights when they form groups.

... even when those groups are legally obligated to act in service of a profit-driven corporate agenda. It's not really 'free' speech when you take the labor of your employees and use it to promote policy that directly conflicts with their interests.

It enabled corporations and other groups to utilize unlimited, unregulated, anonymous spending on elections. As a result, much of, maybe most election spending is by people unidentified to the American public, and of course that makes politicians beholden to them. At least the Russians are identified!

IBM's genius was to take Logan's Run, and make Carousel into the promotion policy!

That's why there should never, ever be any conditions on a severance package.

My spouse gave up an entire severance package because of the ludicrous terms outlined in the agreement. She could have been sued for any comments she made about her employer in perpetuity if she took her severance, which was neither generous nor fair. Our lawyer advised us to walk away and didn't charge us for his time to look at it either.

I'm happy the two of you were able to do that, but many, many people would not be able to turn down the severance, regardless of how terrible the terms are.

Couldn't she be sued even after declining severance ?

No, signing the draconian contract was a condition of receiving the severance, so (as explained by our attorney) by not signing she was not bound by that contract. It didn't amount to much money wise, not even a whole paycheck, and we were fortunate enough to be able to pass it up.

the natural state of things is anyone can sue anyone. So unless she got them to sign a contract to not sue, they can sue her.

Sure. They could sue but they cannot sue for a slam dunk "breach of contract" suit. They would actually have to prove damages which makes any case much more expensive for the company.

Yes of course, but not with a previously agreed cause of action.

Why should a company give one then?

Because treating people fairly is one of the requirements for many (not all) to sleep peacefully at night. And because it's the right thing to do, and keeps your Glassdoor ratings up.

But is the term actually valid signing a contract with an illegal term makes that term invalid.

I honestly think changes should be made to employment law that invalidate sections of an employee contract that contravene or reduce the employee protections written in law.

You shouldn't be able to sign a contract that waives your right to sue your employer if they discriminate against you.

Came here to say this. Non-descrimination rights should be inalienable.

Arbitration itself is not a problem. The selection of the arbiters is. From what I have seen, in Europe generally the panel is composed of two members chosen by the two parties and a third one by common agreement (any previous agreement being null and void) or, in case of disagreement, nominated by the president of the local tribunal.

> Arbitration itself is not a problem. The selection of the arbiters is.

That's true, if the goal is to settle a specific unique dispute between two parties.

The problem is that arbitration in the US isn't used as strategy to settle such disputes, it's used to keep disputes secret and divide-and-conquer wronged parties to make dispute settlement impractical for them. Basically, it serves to tip the scales further in favor of the largest, savviest players.

Some types of claims are not waivable by law. But I'm not sure discrimination should be one of them. Your proposal would have the effect of making it impossible to settle such claims in exchange for severance payments on termination of employment. This would only be helpful to employees who naively sign a separation agreement without understanding what they have given away. Perhaps a more nuanced approach could work, eg, the one taken by OWBPA to impose a mandatory post-signing period in which an older worker can revoke their signature. This is currently the law for "older workers" but I see no reason not to extend to all workers...

I'm not sure the settling of claims on termination is a particularly great mechanism as it stands. At least among friends, that seems to be a common clause when somebody gets laid off or let go. E.g., I know somebody who was laid off from a large tech company with no notice, and any severance was made conditional on signing away all rights.

In effect, the ability to sign away those rights generally, rather than in response to settling a specific incident of wrongdoing, gives employers terminating a employees an incentive to fuck them over so as to maximize leverage.

Perhaps better is something where anybody signing away the right to sue over discrimination has to do it under the supervision of the state's workplace anti-discrimination regulator? That would remove the information asymmetry that the employer has here.

> Perhaps better is something where anybody signing away the right to sue over discrimination has to do it under the supervision of the state's workplace anti-discrimination regulator? That would remove the information asymmetry that the employer has here.

Please, no. I can already predict the outcome: government bureaucracy slows down the whole process to a standstill, corruption/kickbacks become the norm. Meanwhile, employees still keep getting screwed over.

Depends on the location, I suppose. I generally hear good things about the California labor regulators, and I've never heard a peep about corruption there.

"Your proposal would have the effect of making it impossible to settle such claims in exchange for severance payments on termination of employment."

That's the point. That shouldn't be possible. I should not have to waive my rights to collect severance. That should just be given by default.

In places where you can't waive this, people still get remuneration from the court. Of course these places have more reasonable lawyering costs too (and/or are bankrolled by the union).

That is the case as I understand it - you cant sell your self into slavery

It wouldn't be so bad (for us) if a union could force the company to use their arbitrators. But honestly, it would be better for everyone all around if the labor laws were stronger and meaningfully enforceable--in an actual civil court.

We deserve better, people. Richie McJobsCreator isn't going to just give away money for better working conditions at his company to a bunch of whiny nerds and unfashionable geezers. That could have otherwise gone straight into the owners' pockets, to... er... create more jobs!

If we can't get the 22-year old naïfs to join up with the 40+ greyhairs, they're also going to work 18 years and then receive discriminatory firings and have trouble with rehiring only halfway to their retirement age. Did you want to have kids and help pay for their tuition? How will you feel when you get fired for being too old, just as your kids are taking their entrance exams?

Wake up. Consider unions, or figure out how to pressure your politicians. Definitely think twice about working for a company that has no older employees. If you wait until you get your pink slip, and I have already been unemployable due to excessive experience for a decade or more, I won't be much help to you. I'll also feel obligated to say "told you so" every time you drop spare change in my cup.

I'm glad the good people at Pro Publica thought this was such an important issue and made that enormous effort to pull together actual data. That is an example of reporters doing their jobs. Over the past couple years on HN, it has been a rough slog to get this issue acknowledged by a lot of people. I've seen comments that would raise this issue aggressively downvoted, or at least pushed back against, hard. I'm not sure what it is exactly--- perhaps we as Americans desperately need to believe in meritocracy-- it is almost spiritual how much we seem to need that as a community. In fact, we are so in love with the idea that job awards, promotions, and continued employment in tech are meritocratic, we will just ignore data to "clap harder" in an attempt to make it so. So, now here is the data, thank goodness. No one can really say it is anecdotal any longer. And logfromblammo is correct- we all need to come together on this one. The labor laws respond to collective action-- that is how we got many of them in the first place. If we really need meritocracy so badly (and I think we do need to find a way to reward skill more accurately, or people get demoralized and that leads to even bigger problems, as it is right now...) we need to push hard for 1. actually blind interview practices (there is so much proof that this works to include marginalized groups- take a look at the screened auditions in major orchestras) 2. removing the ability of companies to "legislate" away labor protections from their employment contracts. 3. figure out how to act as a collective force to protect fair labor laws. Since we are a community of people who deftly wield software, I don't see that collective action should be much of a problem here. Ideas like the collecting of data (Pro Publica) and The Pursuance Project (Barrett Brown's organizing and collective action tool) could provide an idea of the way forward. But logfromblammo is right: we all need to wake up! first.

I admit naievity, but I didn't think contract law could waive things this fundamental.

It feels like somebody drove contract law to a very strange place. Can we sign away rights to fundamental freedoms and become slaves?

> I admit naievity, but I didn't think contract law could waive things this fundamental.

In civilized countries, it can't: binding arbitration is unenforceable in Canada, Europe, Japan, etc. This is purely an American problem.

I'm not sure why this post is downvoted. Analemma's right. Civilized countries don't routinely redefine civil rights as the US does. Binding arbitration is no substitute for the lack of law enforcement. This is a simple violation of statute, not contract. No arbitration should be needed.

For example, Germany actually asserts a civil right requiring that every employee have access to at least 4 hours of daylight every day. In the US, no such law would be respected or enforced, given the latitude granted corporate misbehavior.

Even if an explicit amendment to that effect were asserted in our Constitution, still our courts would gladly entertain the redefinition of every part of that statute, from "employee" to "daylight" to "4 hours".

This widespread institutional tolerance of legalistic weaseling by haves to overwhelm civil rights of the have-nots is quite uncivilized, there's no better word for it.

In this case, IBM's malefactions toward elders is a perfect illustration of civil abuse. For this and the sundry other ways the company has victimized its staff and customers for decades, IBM richly deserves no less than a death sentence.

Would you mind sharing reference to Germany's rule about 4 hours of daylight? (even if it is German)

I'm very interested, but my google-fu is not good enough apparently.

There is no strict four-hour-rule but adequate access to daylight is indeed required.

Most rules are available at https://www.baua.de/DE/Angebote/Rechtstexte-und-Technische-R... and a good summary is at http://publikationen.dguv.de/dguv/pdf/10002/i-7007.pdf

It took a couple of minutes with Google and the phrase "binding arbitration in $X" for $X in {Canada, Japan, France} to determine that this is not accurate.

Are you sure you aren't mixing up binding arbitration with something else?

Edit: it sounded like you were talking about arbitration in a more general context than just employment contracts. If you are just talking about employment contracts than you are probably right (except possible for Canada, where there seems to be case law going both ways, so it seems to depend on the particulars of what is in dispute and how the contract is written).

I think GP meant forced binding arbitration, where you can permanently sign away your right to sue in advance of an actual dispute. I believe this is a fairly unique issue to the US. Or are you stating that you can do the same in e.g. Canada?

Id agree in the UK its common to settle out of court (well employment tribunal) and employers must pay for your selected lawyer to check the "compromise agreement"

Your employer cant say ah you must use my mate Saul the solicitor that did my last house purchase who I know from the golf club.

Uhm, are you sure? https://www.americanbar.org/content/dam/aba/events/labor_law...

"In France, as a general rule, arbitration concerning individual employment contracts is prohibited. This holds true even in cases where the parties have included an arbitration agreement and a valid choice of law clause designating that foreign law applies to the entirety of the employment contract. Such a strict interpretation is seen as a public policy measure intended to protect employees who are considered to be in a necessarily weaker bargaining position compared to their employers. By giving Labor Courts the unique competency to adjudicate such matters, France can effectively safeguard its workforce.

Similar interests motivate protective regulatory schemes in most European Union (EU) nations where, as we will discuss, the prevalence of arbitration in labor and employment disputes remains limited and political weariness towards the practice pervades. "

It wasn't clear if he was specifically referring to employment arbitration or binding arbitration in general.

Not sure why you were downvoted. As far as I know you are correct, at least for Europe, in the area of workers' rights.

What is a job if not exchanging "slavery" for money? The main problems with slavery are "non-consensual" and "non-terminable", both of which are not problems with contracts.

If an ex-employee wants to break a contract, they can do so. But they must return the severance payment.

There is a risk of Specific Performance, but that seems inapplicable here https://en.wikipedia.org/wiki/Specific_performance

> "What is a job if not exchanging "slavery" for money?"

that's a very perverse perspective, and is exactly the sentiment a multi-national corporation like IBM would want you to have.

a job is an opportunity for two parties on equal footing to make a favorable exchange: my labor for your cash. it's a classic example of a capitalistic win-win. it's an opportunity for me to ply my trade, to further develop my expertise so that my offerings are more attractive to others and i can make more money. it's an opportunity for you to further your business objectives, widen your offerings, and widen your reach.

slavery is ownership. it's callous and flippant to make such a correlation to work for hire.

> slavery is ownership.

Chattel slavery is ownership, but slavery extends beyond just chattel slavery.

i'd like to see legislation that holds companies accountable to anything they list in their recruiting/marketing pitches ( unlimited vacation, work/life balance, hip and cool, etc. )

That's my point. A voluntary job can't be slavery, by definition.

You've just terminated my employment, removing my ability to pay for food and shelter for myself and my family. There is no way you can tell me that any such agreement waiving rights for severance was not done under duress.

Actually being a slave might be preferable. Slaves had guaranteed room and board and medical care...

No they did not.

In some form or another access to the courts is supposed to be a right... and yet it isn't in many cases.

I can't get phone or internet access at my home through any of the providers without an arbitration agreement of some kind.

It stops being an optional legal agreement when you have no choice....

wow! I had no idea forced arbitration could trump labour laws. ...oh wait, US has none of that.

The irony being that it was one of the countries once upon a time known for actually having them (starting in 1886).

In 20 years we're all going to be laughing at how barbaric and abusive all these forced arbitration clauses were.

How enforceable is something like that?

FYI, your quote renders as a fixed-width font code block and does not word wrap on mobile. It makes the text very hard to read. For mobile user’s benefit, a different quotation method would be better.

I would love for HN to support some type of mark up that could actually render a quote block properly. ( @dan )

> But it doesn't have one AFAIK.

It's not markdown, and the only thing we have is a code block.

I've re-formatted for an even slimmer screen :D

You’re better off wrapping it in asterisks and prefixing it with a >:

> No, Mr. Bond. I expect you to die.

HN really needs some basic features to improve quality of life (and comments). Like making links, quotes, bullet lists, and code.

In short, it needs markdown

I just go with the * around the text since it seems to work fine for mobile.

One problem that makes it much worse is that the css for the code block has a very small max-width, if you disable it, much easier to read.

> It's not markdown, and the only thing we have is a code block.

And shitty unescapable emphasis which fucks up as often as it succeeds.

The username is @dang

What I've sometimes done when I've needed a second level quote, or needed to both quote the parent comment and something else, is use a code block but word wrap it at some length hopefully not too wide for mobile.

Here is an example using blocks wrapped to 40. How is this on mobile?

>This is a top level quote

  second level quote something about the
  quick brown fox jumped over the lazy
  poodle

    third level quote the fox was Scottish
    and wearing a kilt, and nothing else.

      fourth level quote when he jumped over
      the poodle she saw his junk and
      complined to HR

        fifth level the fox got in trouble for
        harassement, and the poodle got in
        trouble for cultural insensitivity to
        Scots

          sixth level also the company got in
          trouble with OSHA for putting the
          poodle's workstation in a place where
          others had to jump over her to get in
          and out of the building

Sadly, this is what that looks like on a phone (iPhone, in this case):

https://www.dropbox.com/s/xw30t56w06xpbgp/hn.png?dl=0

I agree but this is how a quoted block is rendered on this site. Its fine for desktop but almost completely unusable on a mobile phone since you have to scroll horizontally to read each line.

> I agree but this is how a quoted block is rendered on this site.

No, it's how a code block is rendered on this site. Abusing that for quotes is not really a good idea. (It's not that great for code, either, but it's tolerable for very small snippets, and the ones it's not good for are probably better hosted elsewhere and linked than embedded in a comment anyway.)

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