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 We previously discussed the journey of the Franken Amendment through the halls of Congress.  (The Amendment would prohibit the award of DOD funds to any Federal contractor that forces its employees or independent contractors to submit to pre-dispute binding arbitration of Title VII and sexual-assault tort claims.)

This weekend, the amendment was signed into law by President Obama.  This means that most military contractors will no longer be able to enforce mandatory arbitration clauses in their employment contracts under a provision signed into law over the weekend.

The issue has been a high priority this year for trial lawyers and for consumer groups.  When speaking candidly, most employment lawyers would agree that clauses mandating the use of arbitration deny employees an impartial hearing in open court.  Supporters of forced arbitration argue that the process is both fair and efficient.  

The open question is whether the passage of the Franken Amendment will lead to an effort next year by Congress to outlaw forced arbitration of civil rights claims throughout the private employment context.  

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Late last month, Representative Jerry Nadler (D-NY), along with original cosponsors Hank Johnson (D-GA), Bobby Scott (D-VA), Bill Delahunt (D-MA), Sheila Jackson-Lee (D-TX), Judy Chu (D-CA), Michael Michaud (D-ME), Carolyn Kilpatrick (D-MI) and Judiciary Committee Chairman John Conyers (D-MI), introduced H.R. 4115, the Open Access to Courts Act of 2009. Although intended to accomplish the same purpose as the Notice Pleading Restoration Act of 2009, S. 1504, introduced in the Senate - to overturn Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) and Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and to restore the Conley v. Gibson notice pleading standard, the language of this bill is different than S. 1504. Here is the language that H.R. 4115 would add to chapter 131 of title 28, United States Code:

Sec. 2078. Limitation on dismissal of complaints
(a) A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.

(b) The provisions of subsection (a) govern according to their terms except as otherwise expressly provided by an Act of Congress enacted after the date of the enactment of this section or by amendments made after such date to the Federal Rules of Civil Procedure pursuant to the procedures prescribed by the Judicial Conference under this chapter.

The House Judiciary Subcommittee on Courts and Competition Policy, chaired by Representative Hank Johnson (D-GA), followed up on the bill's introduction with a hearing on December 16, 2009. 

Source: NELA

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 One bill remains outstanding as a part of the final appropriations process for FY 2010 - the Department of Defense (DOD) appropriation - the bill to which the Franken Amendment was attached. The Franken Amendment would prohibit the award of DOD funds to any Federal contractor that forces its employees or independent contractors to submit to pre-dispute binding arbitration of Title VII and sexual-assault tort claims.

On Wednesday, December 16, 2009, very significant progress on DOD Appropriations - and on the Franken Amendment - was made. Most important, a somewhat revised Franken Amendment was included, as Section 8116, in the bill that emerged from the Conference Committee. The House has passed the conferenced bill, along with amendments relating to short-term extensions of unrelated bills. The bill is currently before the Senate for final action.  It is expected that the Senate will concur with the House version.

Source: NELA

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The Equal Employment Opportunity Commission is looking at getting an extra $23 million dollars to help tackle the growing backlog of cases at the at the agency. 

According to the National Law Journal, the 2010 omnibus appropriations bill, passed by the U.S. House of Representatives on Dec. 10 and by the Senate on Dec. 13, would funnel those additional millions to the EEOC to help the agency get a handle on more than 70,000 unresolved discrimination complaints. 

The article reports that the resource-starved EEOC recently saw a 35% jump in its backlog, from 54,970 cases in 2007 to 73,951 last year. The agency also saw a record number of discrimination complaints in 2008 — 95,402 — which was also a nearly 20% increase from 79,896 in 2007. Nearly two-thirds involved racial or gender discrimination. 

Meanwhile, the agency has watched staffing levels shrink 25% in recent years under the last administration, from 2,850 in 2001 to 2,150 in 2008. Currently the agency is hiring 200 new investigators. 

The EEOC has always had a chronic problem with not being adequately funded.  While this new funding won't totally rectify the situation, the move should be welcomed by both employers and employees.  Regardless of outcome, it is in everyone's best interest for EEOC investigations to be resolved in as short a time frame as possible.  

Read the story here.

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