09.25.17

Statement On The Nomination Of William Emanuel To Be a Member of the National Labor Relations Board

One of the most pernicious threats to the right of employees and consumers to access our judicial system has been the rise of forced arbitration.  This practice unfairly eliminates access to our courts for millions of Americans.  When used by employers, forced arbitration serves to shield corporations from the consequences of harmful behavior such as discrimination or sexual harassment.  Today, the Senate is considering a nominee for the National Labor Relations Board (NLRB) who has advocated in favor of forced arbitration in the employment context.  Mr. Emanuel’s support for stripping American workers of their rights is an important reason why I am opposing his nomination.

The shadow justice system brought about by forced arbitration results in real harm to employees while serving only to protect powerful corporate employers.  In a high-profile example from last year, former Fox News host Gretchen Carlson was barred from speaking publicly about her allegations of sexual harassment against the company’s former chairman, Roger Ailes.  Had she not spoken out and instead complied with the private arbitration clause in her contract, her case would have been hidden from public view, denying other victims of harassment the knowledge that they were not alone.

In another disturbing case reported earlier this year, hundreds of current and former employees of Sterling Jewelers -- a company that earns $6 billion in annual revenue -- have for years alleged that the company is engaged in pervasive gender discrimination and has fostered a culture that condones sexual harassment.  According to reports, this shocking behavior dates as far back as the early 1990s.  Despite decades of allegations from women at the company, these claims were hidden behind closed doors because of private arbitration.  The full details are still unknown today.

These are just two examples that highlight the serious harm forced arbitration can cause employees.  During the Obama administration, the NLRB found that the use of forced arbitration by employers to limit employees’ rights to enter into class or collective actions violated the National Labor Relations Act.  Mr. Emanuel participated in key cases related to this decision.  I am concerned that his history of advocacy on this issue could lead to him prejudging the outcomes of subsequent cases that come before the Board. 

Unfortunately, Mr. Emanuel declined during his confirmation hearing to recuse himself from decisions related to forced arbitration should he become a member of the Board.  His other answers on this issue did not sufficiently allay my concern that he would work to undermine the rights of employees to access our judicial system.  As someone who has fought for years to protect Americans’ access to the courts and has introduced legislation to limit the harms caused by forced arbitration, I must oppose his nomination.

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