Lawyer Monthly Magazine August 2020 Edition

those documents, in many cases, are “at- will” employment provisions andmandatory arbitration provisions that compel arbitration for any employment dispute. As part of the arbitration provisions, the employee surrenders his rights to a civil jury trial and his right to a collective, representative or class action. Later, if a class action should surface, the employer will argue that when the employee signed the arbitration provisions, they could never be a putative class member. They will be, as I have referred to, “dismembered” from that class. Additionally, and more concerning, is the whole arbitral process. Most of the arbitrators are retired judges and magistrates who collect a state or federal pensionandkeep their feet wet in thewaters of litigation by signing on to arbitrations to supplement their retirement. The minority are attorneys who practice as arbitrators. In those instances, the attorneys know who is paying for the arbitrations – the employer. Repeat business is important for the arbitrators’ livelihood. Though Lady Justice is supposed to be blind, there is a dire need for the arbitrators, who may be without pensions, to please the employers. It is not as likely that an employee who wins will generate repeat business for the arbitrators as when an employer or his counsel wins. I have learned on some 25- 30 arbitrations I have handled or currently handle that the employer’s counsel reminds the arbitrator who is paying the bills. I have observed employer’s counsel refer a case to an arbitrator who is deciding an important issue on a related case. That case referral translates to “buying influence” over the decision. The “fair trial” concept is jeopardized even if the arbitrator says he or she can weigh the evidence fairly. I don’t believe that employment arbitrations can continue in this fashion much longer. As the workforce changes and technologies advance, are workers being devalued? I have recently authored a book entitled “The Devalued,” which drives the belief that as technologies develop and computers assumemore andmore of our daily lives and work experiences, we become “Devalued.” If there is no longer employment for us, our own self-perception of value whither. When the need for humans to perform jobs is no longer a requirement, what happens to the self-esteem of each individual? Whether one is 20 years or older, if the marketplace no longer needs one’s skills or talents, what happens to the human psyche? It is the discrimination to end all discriminations – when humans are completely displaced from the workforce. It is a book that will open people’s minds to a new reality that is just around the corner. – impressive offices, large and accessible staffing bases, elaborate furnishings and large signage that stoke the corporate ego. Having employees working from home defeats that goal. Corporate America wants its employees near and dear. What if employees feel apprehensive about returning to the office? What are their rights? Being laid off from the job hurts the inner core of an employee. That employee has given himself/herself to the enterprise and now, in times of trouble, the employer betrays the employee sending him/her off without pay to fend for himself/herself. That feeling of replaceability sets in. Some employees will find other work; other employees will remain true and blue to their bosses. If they are determined to leave the company, they have every right to do so. Their employment, in most instances, is “at-will” and, therefore, they are free to find other employment with or without notice to the furloughing employer. Just as the employer lays off the employee as an act of disloyalty, so too can the employee’s act to find a substitute position. No one can say that the employee must undergo any hardship, endure any burden, financial or otherwise, including facing bankruptcy, divorce, eviction, creditworthiness downgrades, loss of health insurance, just to stay loyal to the employer hoping that one day he or she may be returned to the ranks of employed. The employee must remain proactive during these uncertain times making sure he/she survives the virus but also survives financially. Have arbitrations eroded employee rights? From my observations and experience, employees have lost their right to a fair trial. At the time the employees are hired they are compelled to sign numerous documents with little or no expression coming from the employer as to what they are signing. The rationale is, “if you want to be employed here, sign these”. Along with FRONT COVER FEATURE - LAW OFFICES OF DALE M. FIOLA 20 WWW.LAWYER-MONTHLY.COM | AUG 2020 About Law Offices of Dale M. Fiola Law Offices of Dale M. Fiola have represented employees for over 42 years combatting the injustices of the workplace and remedying the problems of discrimination and wage and hour violations. Contact Dale M. Fiola - Attorney at Law 200 North Harbor Boulevard, Suite 217 Anaheim, CA 92805 Phone: (714) 635-7888 | (714) 635-7887 www.dalefiola.com