Don't laugh at Al.

Wednesday, October 07, 2009

Laugh all you want people, but Al Franken is no slouch of a Senator. Recently, he sponsored an amendment to insert boilerplate into a defense appropriations bill that will hold defense contractors more accountable for the way they treat their employees. Specifically preventing employees from signing away their right to go to court when they experience a sexual assault at work.

The amazing thing is 30 male, Republican Senators voted against the amendment.

What were they thinking? This is getting too easy.

Source: Think Progress via Balloon-Juice.


Smitty 3:51 PM  

The 30 Senators who voted against it can make an excuse that all Al was doing was levyinh a political attack against Halliburton and other defense contractors and that they certainly don't support rape, but neither do they support political attacks against private companies.

But the truth here is Al was indeed giving people their due process. There is an interesting constitutional question here in that I thought that with certain exemptions, legal contracts supercede the constitution; non-compete clauses are a prime example of something our constitution frowns upon but are present even in my own contract.

That said, there is no excuse for being able to take away someone's right to relief when they have been violently abused by their employer. Fired under less than clear reasons I can understand. But gang-raped? Locked in a shipping box? Deprived of food and water? And all she gets is a company-hired mediator?? Fuck. That.

steves 6:34 PM  

I won't laugh at him, unless he is telling a joke. I liked the video of him responding to the protester that Mr. F posted. I also read an interview of him in Lord, Save Us From Your Followers: Why is the Gospel of Love Dividing America? which was very thoughtful and showed him to be a genuinely decent person, IMO.

I would take him over either of our Senators.

steves 6:43 PM  

Smitty, there are limits to any contracts. Under Lochner v. New York we saw the Supreme Court say there was a Constitutional right to Contract. Over the next 40 years, that decision was slowly overturned. A contract will generally be enforced, but enforcement cannot break the law nor can it violate the Constitution.

Non-compete clauses are ok, but there are limits, in terms of time frame and distance. Requiring a mediator in the situation you describe is BS. I am also not a huge fan of forum selection clauses in all situations. In other words, you can sue, but you have to file in Bumfart, Idaho.

Phil 10:28 PM  

Hi Smitty.

I am fairly sure that contract law, as robust as it is, does not supercede federal criminal law.

Non-competes are legal as they are, but not if they restrict speech or trade unduly.

Smitty 8:07 AM  

Figures, I had it backwards. Should have paid attention in that class in college instead of showing up drunk.

I am glad she will get her due.

steves 9:02 AM  

She will get her due unless we are talking about a civil remedy. In that case, there might be contractual limits that specify how she may proceed.

B Mac 11:27 AM  

IIRC, Courts have also been less likely to enforce unconscionable contract provisions in recent decades. Even for tort-based stuff (i.e. if she sued for assault, battery, or trespass), courts have not allowed actors with superior bargining power to waive their own liability, especially for intentional torts.

Beyond that though, I find the 'you're being unfair to Halliburton' claim to be bullshit.

What kind of argument is "you're picking on this company because they condone rape"? They think Congress is overstepping its oversight when they decide to stop giving money to a company that hasn't come down on either side of the "sexual assault is bad" question?

Jesus Tapdancing Christ...

steves 12:03 PM  

IIRC, Courts have also been less likely to enforce unconscionable contract provisions in recent decades.

Very true, but the threshold for unconscionable is pretty high and there is no fast and easy definition.

Bob 3:35 PM  

"Very true, but the threshold for unconscionable is pretty high..."

I am thinking gang rape and imprisonment should probably fall into the "unconscionable" threshold.

Smitty 3:54 PM  

Yeah, if a court won't see gang rape, imprisonment in an unheated, unlit cargo shipping container, and deprivation of food AND water as "unconscionable," then we have REALLY lost our fucking compass here. I am neither a lawyer nor a judge, but I am gonna go ahead and chalk this one up to "unconscionable."

steves 7:11 PM  

The threshold deals with the contractual requirement, not the tortious conduct. I suppose if the contract said the penalty for a breach would be to be locked up and gang raped, then it would apply.

In this case, the court would have to determine if the requirement that a person go though a mediator as a civil remedy was unconscionable. I would certainly argue that a company hired mediator is not an adequate remedy, as they would be biased towards the company.

Again, as it has been pointed out, this only applies to civil actions.

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