Jennifer Fultz in front of EGS Customer Care, Rockford, Illinois. Photo by Mary Langenfeld.
For four-and-a-half years, Jennifer Fultz was for many people the face—make that the voice—of JPMorgan Chase. She worked at a call center in Rockford, Illinois, helping the finance giant’s customers with their banking accounts, credit cards, and auto loans. She liked her job, though it paid just $11 an hour, barely enough for Fultz, a single mother, to get by. On three occasions, she says, her team leader presented her with certificates of commendation.
“Once you have so many years under your belt you become very knowledgeable and are able to help customers without putting them on hold or anything,” Fultz recalls. “I became very good at my job.”
On Monday, September 12, Fultz was summoned to a meeting with the human resources manager at her company, EGS Customer Care. She was given a form and told she needed to sign it. The form, titled “Agreement to Arbitrate,” bore the name of EGS’s parent company, Alorica. It pledged employees to resolve all workplace claims and disputes through arbitration and not “class action, collective action, and representative action procedures.”
Fultz says she asked to see a lawyer and was denied. Instead, she was given thirty minutes to sign or else be deemed to have voluntarily resigned. What happened next highlights both the casual contempt companies like Alorica have for the rights of their workers and the extraordinary courage of Jennifer Fultz, who took a stand on principle rooted in her own family’s experience.
This is a story whose reach extends from the lowliest working stiff to the highest court in the land. It concerns a massive corporate-driven rejiggering of the social contract with regard to access to the courts, impacting a huge segment of U.S. workers and virtually every consumer. And it’s something most people have never even heard about.
But for Jennifer Fultz, it has meant paying a terrible price. She left work that day escorted by police, with a box of belongings the company had retrieved from her desk. She was fired and lost her health insurance. Her former employer initially fought her efforts to obtain unemployment benefits. She went from living paycheck to paycheck to struggling day by day. She is still reeling from the unfairness of it all.
“Why should anyone be faced with that kind of choice?” she asks, through tears. “To choose between supporting your family or giving up your employment rights?”
But it’s not at all uncommon. Encouraged by court rulings, corporations are increasingly insisting that those they do business with, and those they employ, agree to handle disputes through arbitration. In some cases, this makes pursuing certain claims practically impossible. In others, it dramatically tilts the balance in favor of the companies.
“It’s huge nationally, what’s happening,” says Seth Goldstein, a union-affiliated lawyer who has filed a labor complaint on Fultz’s behalf. “It’s gigantic. It’s a sweep against everybody. It’s a sweep against consumers. It’s a sweep against employees. It’s a sweep against people who use financial institutions and nursing homes. It’s the biggest racket. It’s a modern-day yellow-dog contract. It’s a prohibition against collective action.”
Yellow-dog contracts, in which workers must vow not to join unions as a condition of employment, were in widespread use until the 1930s, when they were outlawed. Critics of mandatory arbitration agreements say they similarly violate the National Labor Relations Act, which expressly protects workers who join together for “mutual aid or protection.”
The National Labor Relations Board (NLRB) has in recent years consistently held that these agreements are illegal. But the courts are divided, with some agreeing and some saying that the Federal Arbitration Act trumps the labor law. The case is almost certainly destined for Supreme Court review, probably next year.
But, in the meantime, employees like Fultz are still being forced to give up their rights or give up their jobs.
Cliff Palesfsky, civil rights and employment attorney.
Chances are you’ve agreed to them. They are clauses included in all kind of contracts and in the fine print you don’t read before clicking the button that says you have. Amazon uses them. So does Google, Netflix, eBay, and Travelocity. The clauses require customers to solve disputes individually through arbitration, not by joining with each other in class actions.
The increased insistence on arbitration was propelled by two U.S. Supreme Court decisions authored by the late Justice Antonin Scalia. In AT&T Mobility LLC v. Concepcion, decided by a 5-4 margin in 2011, the court held that mandatory arbitration clauses can include class-action bans. In American Express Co. v. Italian Colors Restaurant, a 2013 case, the court voted 5-3 to allow class-action waivers in arbitration clauses even if that made seeking redress prohibitively expensive. Wrote Scalia in that decision, “The fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.” Some people just can’t afford to invoke their rights. (This is the same Justice who could not find a constitutional problem with executing people who are actually innocent.)
Companies contend arbitration is a quicker and simpler way to resolve grievances than going to court or using administrative law proceedings. But as The New York Times found in a three-part series last year, it means far fewer grievances are heard at all:
“By banning class actions, companies have essentially disabled consumer challenges to practices like predatory lending, wage theft, and discrimination, court records show.” As federal Appellate Judge Richard Posner once remarked, “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”
Mandatory arbitration clauses were an essential tool for Wells Fargo as it swindled its own customers out of millions of dollars by signing them up for accounts and services they didn’t request. The company used language tucked into its account-opening agreements to repel class-action lawsuits that would have brought the practice to light.
“By pushing these cases into secret arbitration, Wells Fargo was able to keep this scandal out of public view for years and continue profiting from massive fraud,” wrote Amanda Werner of the nonprofit advocacy group Americans for Financial Reform.
In the employment realm, the boom in mandatory arbitration has hamstrung efforts by nonunion workers to bring collective action against unfair wage and hour practices, workplace discrimination, and unjust termination. Companies from Halliburton to the Olive Garden have included mandatory arbitration agreements in their covenants with workers.
Sometimes workers are told to sign agreements, as in Fultz’s case; sometimes language is included in job-offer letters or employee handbooks. A December 2015 report by the Economic Policy Institute, a nonpartisan think tank, estimated that “a quarter or more of all employees in non-union workplaces are subject to mandatory arbitration agreements.”
Goldstein, senior business representative with the Office and Professional Employees International Union, Local 153, based in New York City, believes the actual total is closer to half. So does Cliff Palefsky, a civil rights and employment lawyer in San Francisco who has been battling mandatory arbitration for decades. In fact, he thinks it may be as high as 70 to 80 percent in California, a state where protections for workers are as strong as the desire of corporations to circumvent them.
“Management lawyers say it is almost malpractice for companies not to prohibit class actions,” Palefsky says. “I mean, they were given a ‘get out of jail free’ card.”
The desire for this card was heightened by the growing and often successful use of employment-based class-action lawsuits. In 2010, the pharmaceutical company Novartis paid $175 million to settle a lawsuit filed by female employees alleging discrimination in pay and promotions. And, in 2007, Nike reached a $7.6 million settlement in a race-discrimination class action brought on behalf of black employees in Chicago.
Now such suits are being bottled up. On November 1, a federal judge blocked a class-action suit alleging race discrimination by the room-renting company Airbnb, due to its mandatory arbitration policy.
Palefsky says it’s no mystery why companies prefer arbitration, usually involving private arbitrators hired by the companies themselves:
“You never have to stand in front of a public jury. The media will never see your case. You can limit damages, you can limit discovery. The arbitrators know who’s paying them. You win more often. You pay less if you lose.” And, in most cases, there is no right to appeal.
Consumers and employees seldom invoke their right to engage in individual arbitration and mostly lose when they do. According to the Economic Policy Institute report, “Employee win rates in mandatory arbitration are much lower than in either federal court or state court, with employees in mandatory arbitration winning only just about a fifth of the time (21.4 percent).”
“Any notion that it provides greater access to justice is just fraud,” Palefsky asserts. “The whole purpose of it is to suppress claims and make it too expensive.”
On September 12, Jennifer Fultz made her usual commute from her home in Roscoe, Illinois, to the EGS office in Rockford. She arrived in time for her 8 a.m. to 4:30 p.m. shift, which she worked five days a week, with Thursdays and Saturdays off. She joined about 300 others in the section of the building devoted to JPMorgan Chase. The Rockford office, she says, has similarly sized operations serving two other clients, Verizon and CVS Pharmacy.
Fultz, who will turn thirty-two in mid-December, was born in Mississippi and raised in Machesney Park, Illinois, where her parents still live. She entered the workforce after high school, including stints at a Chrysler factory, the U.S. Postal Service, and the Illinois Tollway. She began working in March 2012 for a company that was bought out by EGS (Expert Global Solutions), which was later acquired by Alorica, a California-based firm with more than 90,000 workers worldwide that promises on its website to “create insanely great customer experiences.”
After fielding calls for about an hour, Fultz was called in to meet with then-EGS human resources manager Katie Aldrich and presented with the “Agreement to Arbitrate.” Fultz had seen this document about two months earlier, when she was asked to go to a company web portal and agree to it. But there was no way to decline or make a copy to review, so Fultz “clicked out.”
When her request to have a lawyer review the document was denied and she was given thirty minutes to sign, Fultz left the room and called her father. “He’s always helped me and encouraged me to stand up for my employment rights,” she explains. “I asked him what he would do.”
John Fultz told his daughter she needed to make her own choice, understanding that refusing to sign would mean losing her job. But John has his own work experience to draw on, which he mulled after the call. He remembers how, as a young man working at a factory in Mississippi, he was presented with a blank piece of paper and told where to sign by a supervisor who said the text would be added later, when the office copy machine was fixed. He looked around him, amazed to see others signing. He refused, and never heard about it again.
John worked at other factories where people were missing fingers and hands, and where burns and broken bones were a regular, preventable occurrence. Ten years ago, he was able to quit working for others and start his own small business, Express Sharpening Service. His wife, DeAnn, left her job to join him two years ago.
“So many companies out there don’t treat their employees right, don’t pay their employees right, and then they go a step further and try to take away your rights,” says John, calling that he’s seen workers subjected to “mental cruelty.”
The question Jennifer had asked him was, “What would you do?” After a few minutes, he texted her: “Don’t sign it.”
Jennifer had by this time signed the form, writing “under protest” on it. She took it back. “I told them I wasn’t going to sign it. I told them I’m here to work. I want to work.” As her father advised, she said she was not quitting and asked that police be called. They were.
“We have an employee who is refusing to leave the premises, or a former employee,” the caller from EGS told the Rockford dispatch center. The call was logged as “disorderly conduct,” although the call log states that she was “NOT DISORDERLY JUST REFUSING.” When police arrived, Fultz was escorted out. She was not cited or charged.
Aldrich, who left EGS shortly after this incident to take a job at GE Aviation, also in Rockford, did not respond to an interview request. Officials at EGS passed the baton to Alorica spokesman Ken Muche, who declined via email to comment on Fultz’s termination “for privacy reasons, and as a matter of policy.” He added that arbitration agreements “are common in our industry and, in fact, are commonly used by many companies in a wide variety of completely unrelated industries.”
After being fired, Fultz had to explain to her eleven-year-old son, Ryan, what happened:
“Mommy lost her job, but there was nothing that I did wrong.” It’s a hard concept even for her to grasp.
Researching the issue, Fultz found a Labor Radio story about another worker who was fired under similar circumstances. Tara Zoumer, who also drew coverage in The New York Times, had worked at a $16 billion startup called WeWork, which rents trendy office space. Her job at the company’s office in Berkeley, California, included changing out the beer keg that lubricates the worker bees.
In November 2015, after seven months on the job, Zoumer was given a class-action waiver with the Orwellian name
“WeWork Employment Dispute Resolution Program.” She was granted a few days to look it over and realized when she did, “This is going to completely kill our ability as employees to fight as a collective unit.” She asked what would happen if she did not sign and was told in an email that “continued employment with WeWork is sufficient to constitute acceptance of the new employee documents.”
Zoumer responded that she was not going to sign and planned to file a claim against the company with California labor officials. The next day, a Friday, she emailed co-workers urging them to know their rights before signing. On Monday, she was fired. She filed a complaint with the NLRB, and a lawsuit against the company.
WeWork has confirmed, in filings with the NLRB, that it fired Zoumer for not signing this and another document but insists it had every right to do so. The NLRB in May found merit in several of Zoumer’s charges; the case is still playing out. But WeWork cited language in Zoumer’s original job offer to thwart her lawsuit and force her to pursue arbitration in New York. That process is pending, although California Governor Jerry Brown recently signed a bill to bar companies in the future from forcing California residents to adjudicate their claims out of state.
Zoumer, who has since found work as “a nanny/chef for a wonderful family,” says the whole experience makes her feel patriotic. She realized “this was my right as an American citizen to have access to the judicial system. And no one, especially a company, should ever be able to take that away.”
The Consumer Financial Protection Bureau, a federal agency, has proposed new rules to bar financial institutions from requiring arbitration to deny consumers the chance to sue in court. In late September, the U.S. Department of Health and Human Services moved to prohibit mandatory arbitration by nursing homes that receive federal funding. There are calls to similarly restrict for-profit colleges, some of which have already rescinded their class-action bans.
An executive order signed by President Obama says companies with federal contracts over $1 million cannot require arbitration for civil rights or harassment claims. The rule, which took effect October 25, does not apply to wage and hour claims.
Hillary Clinton, as a candidate, vowed to give federal agencies “broad and clear authority to restrict the use of arbitration clauses and related provisions in consumer, employment, and antitrust contexts.” Donald Trump, reported Time magazine, was “quiet on the issue” but made his campaign workers agree to arbitration.
Democratic Senators Al Franken and Patrick Leahy have each introduced bills to curb mandatory arbitration. Former Fox News anchor Gretchen Carlson, whose own effort to sue over sexual harassment ran up against a forced arbitration clause, has agreed to testify in support of the bills.
Harris Freeman, a professor at Western New England School of Law in Massachusetts, says employees may be better able than consumers to beat back mandatory arbitration because federal labor law “grants workers a right to act in concert that no law grants to consumers.”
Since January 2012, the NLRB has taken the position that clauses to preclude collective action violate the National Labor Relations Act. But in late 2013, the Fifth Circuit U.S. Court of Appeals in New Orleans ruled that the act is effectively preempted by the Federal Arbitration Act of 1925. Palefsky calls this interpretation “ridiculous.”
The NLRB apparently agrees. The independent body, in recent years dominated by Obama appointees, has defied the Fifth Circuit ruling and continued to reject class-action waivers in dozens of cases. And some courts have agreed, most notably the Seventh Circuit Court in Chicago, which in May 2016 ruled against Epic Systems, a Wisconsin-based software provider, for blocking a class action brought by employees over the denial of overtime pay.
“There’s no doubt the Supreme Court is going to have to accept this issue for review, because there is a dramatic split on a very important issue,” says Palefsky. Both he and Goldstein hold out hope that the court will rule that arbitration cannot be used to deprive workers of substantive rights, even after the new President is able to make his appointments.
“I’m as committed as ever after the election, as before the election, that people’s rights need to be upheld,” Goldstein says.
Fultz’s case is now before the NLRB, based on charges filed by Goldstein naming Alorica and EGS. The company, in fighting Fultz’s application for unemployment benefits, admitted her job ended because she refused to sign an arbitration agreement. (It subsequently failed to appear at a hearing contesting this decision, and Fultz was awarded these benefits.) The NLRB, Goldstein says, has issued a preliminary ruling in Fultz’s favor, although the ultimate outcome will likely hinge on the Supreme Court.
Goldstein says Zoumer and Fultz are the only workers he knows of who were fired for refusing to sign arbitration agreements. He considers them heroes. Palefsky is aware of workers fired in the past but not other current cases. Both lawyers say they wouldn’t counsel anyone to refuse to sign if it meant losing a valued job. But, Goldstein adds, “If they were willing to do it, I’d represent them in a minute.”
Surprisingly, Fultz says that if she were offered her job back she’d take it, even after all that’s happened and the fact that she “hadn’t had a raise in four years.” Reinstatement with back pay is a remedy the NLRB and the courts could require.
But there is one thing Fultz will likely never get back: the certificates of commendation she had received from her employer and kept at her desk. These were, she says, not in the box of belongings she was given before police escorted her out the door.
Bill Lueders is associate editor of The Progressive.