Tesla Employment Arbitration Agreement Substantively Unconscionable | Hacker News Reader

Tesla Employment Arbitration Agreement Substantively Unconscionable

arstechnica.com

42 pointspkilgore9 comments

No natural person willingly enters a contract for binding arbitration; we only do so because there is no other choice.

I worked at my previous job for five years when they asked me to sign a contract for binding arbitration. Of course I signed it, not because I was enthusiastic about the prospect of fake judges hired by the company, but because the other implicit option was looking for a new job in an “at will” state.

> "Tesla increased its leverage by not telling Ms. Barraza about the arbitration provision until she had already accepted a verbal offer and quit her other job."

I've been saying for years that I don't see how contracts like that are enforceable.

As Shakespeare wrote: "the first thing we do, let's kill all the lawyers". Apparently, this statement is controversial. It shouldn't be.

Shakespeare puts those words into the mouth of Dick the Butcher, a violent anti-intellectual anarchist, who for the sheer devilment of it joins forces with a deranged pretender noble (who in turn sets about killing the literate while "liberating" their property, including in this their womenfolk)

Are you sure he's the company you wish to keep?

Are you going to actually debate the merits of the statement or just change the subject to make ad hominem attacks of a fictional character?

It's actually the opposite of an ad hominem: Shakespeare puts those words in the mouth of a violent and disordered criminal precisely to attack such sentiments, tempting though they may be to us when faced with outrageous behavior by lawyers. It is a warning to us to avoid throwing the baby with the bathwater, and the deplorable character of Dick is exactly to the point.

Other words of fiction on the topic, though placed in the mouths of real people who held something of these views (A Man For All Seasons):

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

> Tesla Employment Arbitration Agreement Substantively Unconscionable

I didn't know that "procedurally unconscionable" was a legal term, but apparently it means that one party didn't freely agree to the contract due to inequality or unfairness in the contract process, perhaps due to relative bargaining power or expertise, so the contract (or perhaps one or more of its provisions in the case of substantive unconscionability) is void.

This would seem (to me at least) to apply to the way most employment contracts and agreements are handled. Moreover, many employment contract terms would seem to fall under substantive unconscionability.

This particular case does not seem to match the standard employment relationship as it seems to have been successfully demonstrated that Tesla had intentionally not informed her of their requirement for a forced arbitration contract until after she had accepted their offer and left her prior employer. That meant by the facts argued in this case the first time she became aware of the contract terms was after she was in a position were her ability to say no was negligible.

Now, I think that there are also issues in real law that relate to whether contract terms are actually fair. I think someone (LegalEagle maybe?) had a video on YouTube about it, but as I vaguely recall things you could freely sign a contract where you took on all the costs of a venture, and none of the profit, and then somehow argue that the contract was so unfair that it isn't valid. *I am super fuzzy on this one, it's very much "I was bored watching YT some day" recollection*

Now personally I think companies should not be able to force arbitration in general, because I agree with you as when we sign such agreements we don't really have a free choice about signing once you've got to new employee orientation day.

I also don't think that force arbitration should be enforceable for criminal actions - and as I understand it, sex (or any) discrimination is often a criminal matter? Forcing arbitration allows a company to hide its behaviour, and avoid monitoring and similar to correct the behaviour.

Most important part, IMHO:

> Barraza's filing also said Tesla's arbitration provision is unfair because it has a carve-out that lets Tesla sue employees for "intellectual property, confidentiality, and anti-competition claims." Multiple courts "have held that a one-sided carve-out from arbitration for the employer's claims, as in Tesla's arbitration provision here, is unconscionable," the filing said.

> Kaus agreed, finding that "Tesla has reserved its right to go to court for the claims it is likely to have and has relegated Barraza to arbitration for her likely claims," and that "the agreement is substantively unconscionable for lack of mutuality."

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