Senator Al Franken (D-MN)
Well, frumps, every once in a while, things workout right – the chambermaid wins the lottery, the tornado misses your house, the amendment passes without getting the stuffing kicked out of it. That last one was just reported today. You might remember that one of Al Franken’s first legislative moves as a freshman senator was to draft an amendment to the 2010 Defense Appropriations bill.
Oddly enough the amendment attached to the Defense spending bill quickly became known as the “Anti-Rape Amendment.” Back in October, I wrote a detailed post on Franken’s amendment and how it came to be attached to military spending. The short version is that, with the recession in full swing, a nineteen year old woman, looking for a job that paid better than minimum wage, went to work for a Halliburton subsidiary (KBR) doing defense department contract work in Iraq.
The young woman, Jamie Leigh Jones, found herself housed in a barracks with 400 men. She was forthwith gang-raped by her colleagues and afterwards was locked in a transport container for 24 hours without food or water until she agreed that she would not report the rapes. When Ms. Jones returned to the US, she discovered that there was a mandatory arbitration clause in her employment contract which meant that her only recourse was to put her grievance before an internal, KBR arbitration board.
Senator Franken found that situation unfair, in the extreme, and he found an innovative way to make sure that companies that want to do business with the US military will not be able to preempt their employees’ right to due process with mandatory arbitration clauses. Franken’s amendment would make it illegal for DoD contractors to require that their employees give up their right to a “day in court” when they’ve been victimized by their colleagues.
Franken’s amendment passed the Senate on October 21, 2009 by a voting margin of 68 to 30. But the amendment became a subject of debate after the Department of Defense, Republicans in the Senate, and even the committee chairman, Sen. Dan Inouye (D-Hawaii) raised concerns that it would leave contractors overexposed to lawsuits.
Is it just me, or does it seem illogical that so many companies might be “overexposed” to lawsuits in which their employee is gang-raped, by fellow employees, and then the rapes are covered up through employee coercion? And if there are a lot of defense contractors that might find this an issue, should we really be doing business with them? Who’s to say that we are not putting our own military in harm’s way by having them serve alongside contractor rapists?
Why The Misplaced Outrage?
The day after the Franken amendment passed, the Huffington Post carried this report:
“An amendment that would prevent the government from working with contractors who denied victims of assault the right to bring their case to court is in danger of being watered down or stripped entirely from a larger defense appropriations bill.”
“Multiple sources have told the Huffington Post that Sen. Dan Inouye, a longtime Democrat from Hawaii, is considering removing or altering the provision, which was offered by Sen. Al Franken (D-Minn.) and passed by the Senate several weeks ago. And since Inouye runs the show on this bill, he can easily take it out to get Republicans and the defense contractors off his back, which looks increasingly likely.”
Sen. Inouye comes into play because he is the chairman of the Committee on Appropriations and, evidently, defense contractors were upset enough over Franken’s amendment that they swarmed Inouye’s office. According to the Center for Responsive Politics Inouye has received $294,900 in donations from the defense and aerospace industries over the course of his career. Hmmmm . . .
“Inouye’s office, sources say, has been lobbied by defense contractors adamant that the language of the Franken amendment would leave them overly exposed to lawsuits and at constant risk of having contracts dry up. The Senate is considering taking out a provision known as the Title VII claim, which (if removed) would allow victims of assault or rape to bring suit against the individual perpetrator but not the contractor who employed him or her.”
That means, essentially, that the contractor would have no responsibility to its employees for the work environment that it places them in. When asked how many employment contracts included such mandatory arbitration clauses, this was KBR’s official response:
“As a matter of standard business practice, KBR requires all employees to sign an arbitration agreement as part of the employment contract.”
“The arbitration process is a method for resolving employee disputes quickly and efficiently, without the delays and expense often associated with litigation. KBR remains committed to ensuring this process is fair.”
“Many companies have dispute resolution programs as part of the arbitration process, which are designed to address employee complaints timely and efficiently, without the delays and expense often associated with litigation. KBR is no exception. Under KBR’s dispute resolution program, 95% of all employee complaints are resolved promptly to the employees’ satisfaction and at no cost to the employee.”
Sounds wonderful, doesn’t it? The arbitration process is flawed but predictably popular with employers because it prevents their employees from suing them and being awarded damages. Companies “sell” the arbitration idea to prospective employees by pointing out that if the employee has a problem arbitration is always available at no cost. What many employees don’t realize, until it’s too late, is that arbitration is binding and cannot be appealed; and arbitrators know that if they want to work again, they must rule in favor of the corporation, not the plaintiff.
In addition, arbitration is shrouded in secrecy which allows companies like KBR to keep untoward situations out of the public eye so that new employees, like Jamie Leigh Jones, have no idea what they are walking into.
A Snowball’s Chance
Given the fact that defense contractors have enjoyed a license to plunder the American treasury for some time now, and given the fact that defense contractors spend more money lobbying than any other industry, it is particularly shocking that the Franken amendment survived.
The amendment has now passed through conference committee pretty much unscathed even the White House, which the Republicans claimed were against the amendment too, told HuffPost it supports the intent of the amendment and it is “working with the conferees to make sure that it is enforceable.”
So, unless those 30 Republican who originally voted “No” on the amendment are up for shooting down approval of the 2010 Defense appropriations, it will become law.
Under the amendment, the government would not be able to do business with companies that deny court hearings for victims of assault, false imprisonment, intentional infliction of emotional distress or negligent hiring practice. The controversial Title VII provision remains in the bill, allowing victims of assault to sue the employers of the alleged perpetrator and not just the perpetrator himself or herself, remains in the bill.
Attempts to strip it of the Title VII provision were met with public outcry, which a Senate source familiar with the negotiations says was partially responsible for its ultimate passage:
“The public support surprised a lot of senators and not just the chairman. The White House was working with Franken’s office to find language that would be enforceable… and I think by the time those talks began everyone was on board, including Chairman Inouye.”
All told, the legislation would affect all major and many minor contractors, forcing them to choose between allowing litigation for their employees or forfeiting the hundreds of millions in dollars that are doled out annually in contracts by the federal government.
“The Franken amendment includes a national security waiver, meaning that the Department of Defense could circumvent the law if it is deemed dangerous to U.S. safety. But, a Franken aide explained, for that to happen, the Secretary of Defense would have to “personally explain why the waiver was used to Congress and at that point make it public.”
I’m a little surprised that we haven’t heard any shrieking from that same gang of Republicans that jumped in front of the cameras last month to sniffle about how their “No” votes had been so misinterpreted; and how they’d been manipulated by Al Franken, a mere freshman, who clearly doesn’t know how this “gentleman’s” game is played.
Evidently that was just bullies blustering mightily because they dropped it and there’s not a whole lot that they can do now. Or maybe, just maybe, they paid attention to Jon Stewart and decided to act like human beings:
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