Tuesday, December 22, 2015

BMS requiring employees to waive their rights to sue and agree to arbitration in the future

I have recently learned that Bristol-Myers Squibb is presenting its employees with a nasty choice: continued employment at BMS requires agreeing that future legal disputes with the company will, for eternity, give up the right to suing the company, but instead will rely on arbitration by a for-profit arbitration organization.

Among other things, the agreement states that:
  • the employees give up the right to be a part of a class action lawsuit
  • the employees' rights to go to the government with concerns is not limited (whew!)
  • the employees have the right to challenge the arbitration agreement (generous of them)
  • worker's compensation, unemployment, ERISA, NLRB are not covered by the agreement
BMS employees have until January 22, 2016 to decide if they will agree to continue to be employed under this agreement. Apparently, all new employees will be asked to sign away their rights to sue as well.

My understanding of arbitration clauses has been that this is a growing phenomena in retail disputes or disputes with financial firms, but a brief perusal of the internet indicates this is an increasingly common practice. The National Employment Lawyers Association (certainly NOT an uninterested party in this case) claims 27% of US employers have these sorts of binding arbitration agreements with their employees. I understand that arbitration firms are, in general, pretty friendly to employers, although this is an impression and not a peer-reviewed scientific fact.

Sadly, it appears to me there is little (short of political action at the Congressional level) that the employees of BMS can do in this situation. I do not love the class-action system (I think it's a terrible legal kludge with bad incentives), but it seems like one of the few remaining constraints on employer power in the employer-employee relationship.

Readers, do you have experience with such agreements? Can you name other major employers of chemists that currently have such agreements? How does a chemist best decide to protect themselves? 

14 comments:

  1. An "agreement" (not) that is "negotiated" (not) between two unequal parties. The employees can lose a lot or lose everything.

    I don't have any experience with this idea, just freshly disgusted after reading a piece about arbitration in today's NYT.

    Just checking, but... I don't suppose BMS gives up the right to sue, do they?

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    1. My read is that BMS also gives up its rights to sue you, the employee.

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  2. I would be surprised if BMS gave up their right to sue.

    I guess somebody who hasn't signed the agreement yet technically still has the right to sue. They should just sue over this deal (requirement) or something, just to create some legal shenanigans.

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  3. If American workers, at all levels, from shop floor to PhDs wouldn't be such pussies.

    I am sure they are afraid of their own shadow.

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  4. When employment is terminated and a severance is offered, there are usually a lot of strings attached. I would guess that after all financial considerations have been rendered by the former employer that some ex-employees have initiated lawsuits, with the idea that some contract terms are not enforcable. This current situation with BMS seems a bit much, IMHO, but I'm not a lawyer, so who knows?

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  5. Not sure whether this applies for the US as well but in most European countries, such agreements would probably be considered non-binding by the courts in case you actually decide to sue the company after all. What it comes down to is that whatever terms to agreed upon in your contract doesn't really matter if they are considered unethical or otherwise in conflict with legislation. In these cases, the employer's potential "...but he/she agreed on it..." argument is worth exactly nothing.

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    1. Recently there were a couple of decisions by the Supreme Court that gave legal grounds to enforce those agreements.

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  6. Invista (a Koch company) forced recently terminated employees to sign some sort of 'waive the future right to sue' documents or forfeit their severance packages.

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    1. I had to do that with a small biotech too. Not just large evil corporations that resort to this tactic.

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  7. I hope at least two employees refuse to sign this shit and class-action sue BMS for wrongful termination

    When I worked for big pharma, we were joking that probably someone at the corporate headquarters in NY City gets a nice bonus for figuring out how to downsize you before Christmas and then screw you out of your severance while making you sign a gag order and waive your rights

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  8. Boehringer Ingelheim US asked us to sign one of these as well, however it was optional, and if you did you were rewarded with one extra vacation day and $500. Not worth it in my opinion.

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  9. The problem with for-profit arbitrators is that if their decisions run counter to the interests of the company hiring them, they will not be asked back to the table the next time a case comes up. These are lucrative positions for retired judges.

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    1. "The problem with for-profit arbitrators is that if their decisions run counter to the interests of the company hiring them, they will not be asked back to the table the next time a case comes up"

      Here, let me fix that for you: "The advantage of for-profit arbitrators is that if their decisions run counter to the interests of the company hiring them, they will not be asked back to the table the next time a case comes up"

      See, you just need the right perspective....

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  10. Your cover letter and resume is your poster child and the first impression on prospective employers. Starting from the cover letter, you need to convince the hiring manager that you are the right person for the open position and that you are really motivated to do exactly this job. See more sample of waiver letter

    ReplyDelete