AN IMBALANCE OF POWER
Craig Byrnes
The partial shutdown of the federal government received a great deal of attention this new year and just prior, with good reason. With the President and Congress unable to reach an agreement on the federal budget, one quarter of the government went unfunded and could no longer continue to operate. The shutdown lasted from December 22, 2018, until January 25, 2019, the longest government shutdown in US history at 35 days.
Astute readers will note the neutral description of the shutdown I’ve given above. It’s intentional. While there is no doubt that CELA is a politically involved organization, we advocate for workers’ rights. So when we look at an issue like this, it’s important for us to focus not on the politics as others may view them, but rather on how those politics affect the lives of California workers.
During the shutdown, non-essential government functions could not be performed pursuant to a law called the Anti-Deficiency Act. That meant that federal employees – many of whom work in California – who were deemed working on non-essential government functions were “furloughed,” or told not to come in to work. Those working on functions deemed essential to the government were required to work without pay. According to a report from the Senate Appropriations Committee, the latter group included 420,000 employees.
About 90% of those 420,000 reported to work, without pay, and without any guarantee of ever being paid.
Let that sink in for a moment.
For those of you reading this Bulletin who receive a regular paycheck: would you work without pay? without any assurance of ever being paid for the time you worked? If you’re not in the
position of receiving a regular paycheck, as many owners of employment firms representing workers are not, imagine yourself in that position nonetheless. Would you show up to work?
The startling answer is: yes, you probably would, if you’re like 90% of the workers who actually went through this, and who regrettably may go through this again in a couple of weeks.
Consider the implication of that simple fact. How strong must an employer’s hold on its workers be that they show up to work out of fear of losing it, even with no guarantee of the most important reason they show up at all: the paycheck that lets them feed their families? How imbalanced must the power between employer and employee remain, even today, that the employer can demand free work and nine out of ten of their workers will comply?
We don’t have to speculate about the imbalance of power inherent in the employment relationship. We just received a real world demonstration of it.
This month’s Bulletin includes cases dealing with arbitration agreements in employment contracts. Ask any employment lawyer who represents workers, and you’ll get stories of employees who signed these agreements immediately, with or without reading them, surrendering their constitutional right to a jury trial, just because they needed the job. Agreements written in prolix legal jargon that they would never consider signing under other circumstances, they readily assent to when they need to make a living. Arbitration agreements are the foremost example of an abuse of the power imbalance between employer and employee.
The trend in the courts is to view these provisions under longstanding contractual interpretation principles: construe them against the drafter, and find at least procedural unconscionability in virtually every employment arbitration agreement. The idea of freedom to contract is illusory in the employment context.
Sometimes the best lessons come from unexpected places. Certainly, the government shutdown has a panoply of implications for this country. In what it shows about people’s need for and strong identification with their jobs, however, it resonates with particular strength.
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