CA's Prohibition on Workplace Arbitration Agreements Overturned by 9th Circuit
news.bloomberglaw.com
news.bloomberglaw.com
Feels like that introduces more unintended consequences than if they'd just left it up to Congress to patch the loophole the state found.
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The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people
What part of the constitution grants Congress the power to impose its will on California in this case?
Summarized "The Court reasoned that Congress could regulate activity within a single state under the Commerce Clause, even if each individual activity had a trivial effect on interstate commerce, as long as the intrastate activity viewed in the aggregate would have a substantial effect on interstate commerce. To this extent, the opinion went against prior decisions that had analyzed whether an activity was local, or whether its effects were direct or indirect."[2]
The Court decided that Filburn's wheat-growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally, is thus interstate, and is therefore within the scope of the Commerce Clause.
https://en.wikipedia.org/wiki/Wickard_v._Filburn
Oh you grow your own food so you don't contribute to the profits of huge conglomerates? Not without the Feds' permission!
The Supremacy clause is a power delegated to the Unites States by the Constitution
The Interstate commerce clause is a power delegated to the United States by the Constitution
The framers in 1790 did not predict that all commerce would be interstate commerce. Anything that the Federal Government allows to be the sole domain of the States is pure generosity, for quite some time.
The United States is a collection of states, and simultaneously a Federal Government of the same geographical shape overlaid. There is very little "federalism" or collaboration, it is Federal in name alone. Just a separate entity thats more well funded and resourceful than any individual state, or the collection of all the states.
Prove it.
A very small fraction of civil cases are resolved by jury verdict. If the plaintiff's case has merit, the point is to get the other side to settle. You sound like a big markets guy. What could be more fair than the parties working out a settlement deal between themselves? No middleman or arbitrator needed.
> What could be more fair than the parties working out a settlement deal between themselves?
What's more fair is, obviously, working out a settlement deal where the alternative is arbitration, instead of a jury. (Why are you teeing up such easy questions?)
Prove that any of the mechanisms you're describing are in play, in the way you claim they are. I'm sure every question you read becomes very easy when you begin from the assumption that "this is how the world works".
Show me the law that permits juries to award arbitrary damages for employment disputes creating "unbounded risk", and show me that a jury has actually done it.
> What's more fair is, obviously, working out a settlement deal where the alternative is arbitration, instead of a jury.
Ah yes, the gold standard of due process, fairness, and impartiality, enshrined in our constitution, the arbitrator. You know it's fair because of how badly the employer wants it and the fact that states are trying to make these contractual provisions illegal.
[1] this means it's harder to understand
This relies on that federal court to uphold, which the same one did in 2021, otherwise I don't see a way around it and I’m often pretty good at finding that
>As things progress, we'll see further concentration
Except recent trends are more companies, not less, as registrations of new entrants increased during COVID [2].
>This is just further backslide of worker's rights in a long history of backslide.
Yet those backslidden workers make more now than pretty much any time in all of history and more than in any other place in the world... [3,4]
[1] https://www.census.gov/programs-surveys/susb.html
[2] https://www.commerceinstitute.com/new-businesses-started-eve....
Now do how many railways or airlines or TV groups or newspapers there are. People with specific skills might have a specific profession (e.g. a journalist) for which their options for employment are extremely limited. Of course they can go and work at McDonalds, but that's not really a great option, is it?
Did you check?
There's over 600 freight railways in the US.
There's almost 400 airlines.
There;s over 1200 newpaper companies.
Not exactly "extremely limited."
And, no matter how you want to argue, no single company or industry owes you a job. But the argument that there is not variety and competition in the US just isn't backed by the evidence. Every one of those professions you list has the US among the highest paying, if not the highest paying, country for those industries. *(Check OECD or whatever source you like).
Or maybe these "extremely limited" options you image exist also decide to pay more than anywhere else?
>Of course they can go and work at McDonalds
Nice red herring. If you want to make more claims please provide evidence (not anecdote, not more opinions copied from blogs) sourced from more than your opinion, since that will base this discussion on realty.
>There's almost 400 airlines.
>There’s over 1200 newpaper companies.
>Not exactly "extremely limited."
It’s extremely misleading to not factor in market share in this type of analysis.
Sure, there may be 400 airlines, but 10 make up 90% of the market. The notion that the other 390 make a material difference in the labor market for that industry is asinine.
If there were the ability to do vastly differently in the labor market, it matters not how small one is - the better solution will over time grow and become the new standard.
On the other hand, if there are actual real worl constraints outside the industry that all players in an industry face, then they will have similar prices, wages, actions, and outcomes.
So if you really want to argue that somehow the biggest players decide the wages for every other player and these wages are not constrained except for the whim of billionaire cabals, then make that argument. Because that is not what happens when there are so many players.
Or, if you really want to check facts, the largest airline in the US has around 20% market share, and it falls quickly after that. So there's nearly zero chance that there's lack of competition - every company after that one are all still fighting to increase market share, by offering they ever they can, including trying to attract the best workers.
What's misleading is trying to lump actual competitors as one monolithic whole and claim there's no competition. The fact is there are many, many companies where one could work. That there are 10 to reach 90% is likely better than in any other country - it is in the few I just checked. Care to show countries where there is more competition? How many airlines do you think employees need to have a competitive market? One each?
5 of those 10 biggest airlines were started in my lifetime, and surely several were started in yours. The only asinine notion is claiming that small companies have no material differences in the labor market over the medium term, since in this industry (and pretty much every other) those small companies are constantly redefining the industry, many becoming the biggest players in less time than an employee's career.
Thinking in static snapshot terms without understanding history or trajectories will always fail your analysis.
The discussion was about the labor market, and what choices you have to get a different job should your employer be a predatory one.
First you claimed that the fact that there is a long tail of enterprises in many sectors, that somehow translates to more choices within the labor market, even though as we know, the vast majority of job actually lie within a handful of firms.
Now, you are making the point that startups can enter the market. This is a red herring. Pilots can’t just start up an entire airline in order to get a new job.
No, I'm not making the circular argument of merging all the places one can work into one made-up uber-company then complaining there are not choices.
> the vast majority of job actually lie within a handful of firms.
First, that does not follow, especially for your example of pilots which I'll clearly show below).
And an individual wanting a new job is not forced to work only at the top few places - they still have choice, and the reason more work at the bigger employers is each employee chose that over every other available job. No central planning operation made them choose it. It's called paying market clearing rates if you really like econ 101.
Someone works in all those companies. Ignoring that there are jobs to move to, and ignoring that the top companies do not provide competition in the labor market is terrible logic or economics.
I'm also not making the mistake of claiming there is not constant, dynamic movements in the airline industry.
>Now, you are making the point that startups can enter the market. This is a red herring. Pilots can’t just start up an entire airline in order to get a new job.
No. There are 600+ firms right now. Making the black-and-white mistake of claiming that the top 10 are the same company and the rest are startups is ludicrous. I said nothing about pilots needing to move to some startup. Or do you claim those 600+ companies all started last week?
Stop making absolutist statements and look at the evidence: no one company has anywhere near monopoly power, there are hundreds of companies to choose from, and even if you somehow are barred by law or magic from applying outside the top 10, that is still a decent size to choose from.
And if you really want to focus on pilots, most do not work for the big companies. For example, American Airlines has ~20% of US market share [1]. They employ 12,700 [2] pilots of the ~700,000 [3] pilots in the US instead of the 136,000 they would employ to have also 20% of the pilot jobs. The reason is that there are far more pilot jobs not flying huge commercial planes full of people, and such jobs are scattered all over. This same pattern works across all the large airlines - the fact is most pilots do in fact work not for the big companies. Care to adjust your thinking now?
This is your opportunity to move more goalposts. I'm sure you can keep restricting classes from many industries, to airlines, to only the top one, to only pilots named Allen, and eventually you'll think you have a pilot without lots of places to work. But I suspect even then you'd fail to make the number of choices small.
So if you want to be honest about where people work, then do so. Don't lump things together incorrectly then claim market share equals employment, because that is not true. And don't lump companies that are competitors as one entity then claim there are not options.
[1] https://www.statista.com/statistics/250577/domestic-market-s...
[2] https://www.statista.com/statistics/741820/american-airlines...
[3] https://www.statista.com/statistics/537863/number-of-pilots-...
> Don't lump things together incorrectly then claim market share equals employment
It of course is going to vary by industry and job class, but overall it actually does correlate. As we’ve seen your analysis was off by ash order of magnitude for pilots.
>This is your opportunity to move more goalposts. I'm sure you can keep restricting classes from many industries, to airlines, to only the top one, to only pilots named Allen, and eventually you'll think you have a pilot without lots of places to work. But I suspect even then you'd fail to make the number of choices small.
Or perhaps I don’t want to have to go on a wild goose chase hunting down specific statistics on every industry.
20% market share for American Airlines would be 0.20*135 = 27,000, yet they only employ 12000 pilots. This is true for all the top companies (you can check).
And it still stands even using your numbers that are too low - I noticed you didn't check the math. But it truly holds for the proper BLS category.
So the overall point still stands - market share does not equal pilot employment, and more pilots are employed outside your odd grouping of companies, which is a nonsensical grouping as is - the biggest has 20% of the market, and < 10% of the jobs. So you still want to claim pilots don't have choices?
How many do they need? What country is better?
> As we’ve seen your analysis was off by ash order of magnitude for pilots
and yet when using corrected numbers all the points still stand, despite you trying to gorup 10 companies as one company.
> but overall it actually does correlate
Certainly it correlates - ignoring yet again that companies that are not large enough to dominate an employment simply cannot do so - they have to compete for workers.
> Or perhaps I don’t want to have to go on a wild goose chase hunting down specific statistics on every industry.
It's much easier to hold beliefs that don't match evidence when you're forming those beliefs while ignoring evidence. Try a few industries. Try to find even a single large sector of the US with very few employers, or an employer so large that they conceivable could dictate terms. And once you realize how hard it is to find this industry you seem to think pervades employment, you'll perhaps adjust your view to the reality of companies having to compete for employees across nearly all people in the US.
This is why it's worth carefully looking at the evidence, which so far seems to be: US workers in nearly every industry are the highest paid in the world, US workers in nearly industry are not facing monopoly employers, and grouping lots of companies that are too small to have such market dominance does not remove the fact they do provide competition for employees.
[1] https://www.bls.gov/ooh/transportation-and-material-moving/a...
Except I replied to a comment about companies being merged, and every subsequent comment in this thread was about diversity of companies.
If you want to derail that, and ignore that the evidence I presented is a factual rebuttal of that topic, then yes, I did not rebut the argument you're having in your head outside this thread.
Next, even your derailed claim about "fact, logic, economics... " argument is not solid, since millions of companies do not use mandatory arbitration. Maybe they didn't get your memo about how it's so clear that mandatory arbitration is the only solution seen in practice.
Care to provide the percentage of companies not using it?
So - once again, black-and-white one-size-fits-all beliefs are demonstrably not backed bt "fact, logic, economics 101, or even reality." Try looking for nuance and you'll learn a more accurate world view.
Certifying a class is a lot easier than thousands of individuals going through repetitive arbitrations. And of course, there is the benefit (for the corporation) that a large percentage of people will find arbitration too burdensome.
Not true at all.
Are there actual examples of cases wrongly decided by arbitration as a result of this phenomenon? Maybe they are all hidden under NDA.
That couldn't possibly be the case as when the FAA was originally passed Congress' Commerce Clause powers were relatively narrow and it would have been inconceivable that the FAA could apply as broadly as SCOTUS now applies it.
In order to get to where the FAA is now, SCOTUS had to jump through multiple dubious interpretive hoops, including some dubious textual hoops as the FAA on its face clearly speaks to the types of commerce (e.g. railroads, shipping, etc) that were within its regulatory ambit at the time of passage. By any reasonable interpretation the more general terms SCOTUS leverages would only apply to those areas traditionally understood as interstate commerce, but SCOTUS wasn't trying to be reasonable--they had a goal to minimize Federal case load, particularly related to class actions (which the conservatives detested for other reasons, as well), and set out to achieve it by hook or crook.
If arbitration is so great for everyone we shouldn’t need provisions in employment contracts!
These provisions are forced onto employees by employer at first place. Put the choice in the contract. The employee is free to seek arbitration or not. Of course, you can always claim the employee isn't forced to sign that contract, but there is an obvious power imbalance in any case.
Just because my work is worth a lot, doesn't mean I have tons of opportunities falling out of the sky.