Comment by jkaplowitz | Hacker News Reader

Comment by jkaplowitz | Hacker News Reader

This seems like the Federal Arbitration Act might at least partly pre-empt it. But I wonder why no legislature has taken advantage of the limited scope of the FAA? Specifically, it only pertains to the enforceability of contracts, but not other disincentives.

For example, a state could raise its corporate income tax rates, but as a separately severable provision, give a tax credit reversing X% of the tax hike if X% of their employees have no restrictions on their ability to publicly litigate and disclose harassment and discrimination claims. (Many variations on the specifics are possible.)

If companies drop these restrictions, it's no extra tax for them and just a few extra lines to complete on a tax form.

Alternatively, if companies keep these restrictions, there's no conflict with the FAA, just a financial penalty.

And if they get the tax credit provision struck down somehow, they keep the tax hike regardless of their employment legalese, so they may not want to fight that battle.

What major flaw am I missing? Just the optics/PR around this politically speaking, or something worse?

It’s arguable that that is a fine on allowed behavior.

Consider somone charging 10,000$ per month rent, but giving white people a 9,000$ discount would clearly be illegal.

I don’t understand how this connects to racism.

Swap block for disabled if it helps. The point is if it’s illegal to charge more for some group, it’s also illegal to give people discounts because they are not in that group.

Aka, Charging X more is equivalent to giving everyone !X a discount while excluding X from the standard discount.

You can give benefits to the disabled. You cannot simply switch disabled with whites and say that because a transmutation of the practice is racist, so is the practice. The original proposal was for corporations, who are not capable of being discriminated against.

Expect, Non-disabled is not a protected class so you can directly give the disabled discounts much like how you can give seniors discounts.

And again, discrimination is not the point, the point was discounts is not a way to get around charging X more. If a state can’t charge a fine for doing X the also can’t give a discount for not doing X.

As long as they aren't a protected class you can do this just fine. If I want to charge football fans twice the price but charge soccer fans half the price, I'm allowed to do that.

Without the Federal Arbitration Act, states could clearly ban forced arbitration agreements within the normal course of contract law and labor law. Federal statutory preemptions of this should not be construed more narrowly than the federal law says.

The Supreme Court has construed this preemption pretty broadly, but always in the context of contract enforcement or validity.

I can indeed imagine that the Supreme Court would write disapprovingly about the tactic of using a financial incentive to discourage forced arbitration clauses, but that's very different from whether they'd go beyond that to actually strike down the tax credit, since the arbitration clauses would remain fully valid and enforceable either way.

As a matter of realpolitik, it matters that the tax hike in my idea is explicitly severable from the offsetting tax cut: most of the judges and ideologically related advocates who like forced arbitration also dislike higher corporate taxes. The only thing they could credibly do against this law would result in higher corporate taxes. A separately severable tax hike conducted in accordance with state law is clearly constitutional.

Or simply say, “the state of California will not do business with companies that use forced arbitration agreements.”

Sure, that'd also work.

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