Yesterday, I was in mediation for 11.5 hours
This was my first big plaintiff side case with a contingency fee, and we settled it. It was actually 3 cases against the same employer. To be honest, I really don’t know how I feel about it. I got the clients some money, but I don’t feel like I accomplished anything. On the defense side (at least in my practice) there is a stronger relationship with a client, and there is usually a sense of a job well done and a problem solved. This one was just money. I can’t say I liked it.
I think part of what is bothering me is what I see in the area of law I am in. We do all these wage class actions, and they don’t get shit for the people. I settled a defense case not long ago for $680,000, for a class of 700 (attorneys fees come out before distribution). Last night, I got $700,000 for 85 people on the wage case, which after fees should get most folks around $3000-$5000. We got a great settlement for this type of case, but that doesn’t feel like I did much for these people, and I get a big fee. Honestly, it is a lot easier to make money doing this as opposed to defense.
The other parts of the thing involved harassment and retaliation. Our plaintiffs had signed agreements to arbitrate their claims, and that denied us the ability to get in front of a jury. These agreements are legal, and you are going to see them everywhere. The reason is that they work. If they had faced a jury, they would have paid 7 figures to settle the case, but facing an arbitrator they have all the leverage. Arbitrators know that their bread is buttered by big defense firms, and they conduct themselves accordingly. Most are old white dudes, and very conservative. The US Supreme Court has upheld the use of these agreements. As a result, we are in the process of establishing a private litigation system for employment disputes where juries are not part of the equation. This does not sit well with me. I trust juries more than judges.
So here is the perspective of someone who has been practicing labor and employment law for 20 years:
1. We do have a litigation system that is out of control. At present, lawsuits primarily benefit lawyers, are arbitrarily punitive, and corrupt lawyers with greed. The core of the problem is wage and hour class actions, which are little more than legalized extortion. Lawyers on both sides get rich, the people get pennies, and business as usual continues. It isn’t working. In a state like California, compliance has become impossible, and risk cannot be eliminated. So employers are running to get people to sign arbitration agreements that block class actions. Even I could not resist the lure of the money when my associate brought this case to me. It is a real problem.
2. We do need an effective venue for workers to vindicate their rights, and for basic labor standards to be enforced. Court is not working, at least for class actions. Wage and hour law has become chaos in California, with courts making law in ways that are upending entire industries. It isn’t helping workers, and it hurts businesses. I don’t know what the answer is, but I know it isn’t arbitration. To me, the starting point is admitting we have a problem and we need to find a different process for these types of disputes. That could take a variety of forms, but we need to acknowledge that where we are isn’t working.
Remember this post when your boss puts that arbitration agreement in front of you, and that they can require you to sign it. Then if they sexually harrass you or discriminate against you, they can pay you off at a discount. The politics on both sides are fucked, and in the end, the workers get the short end. And no, I have not made my employees sign arbitration agreements, but I insist that my clients do. I never said I was any better than all the rest.