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Susan Fowler’s next act: Ending forced arbitration, which blocks workers from suing their employers

The Uber whistleblower is working with the California Labor Federation to help bring awareness to a new bill.

Susan Fowler NBC News

In the months after former Uber engineer Susan Fowler published her viral account of the harassment and sexism she faced at the company — which led to a massive executive shake-up at Uber and a Time magazine “Person of the Year” cover for Fowler — she struggled with what she wanted to do next with her newfound platform.

But now, Fowler says she has found her calling. The young mother of a newborn daughter wants to end forced arbitration for all workers — a legal agreement that requires any employee issue to be litigated outside of a formal court system. And she’s starting with California.

“I know that if we got rid of forced arbitration and non-disparagement agreements, I know that this would not happen to future Susans,” Fowler told Recode.

Today, alongside its author California State Assemblywoman Lorena Gonzalez Fletcher, Fowler is introducing a new bill that seeks to prohibit companies from making it a condition of employment that employees agree to settle any issue in arbitration.

“Forced arbitration is kind of a legal loophole that these companies could use — companies like Uber — to cover up illegal behavior,” she said.

Those agreements, often couched in difficult-to-understand legalese, make it hard for people like her to get justice for workplace harassment and other issues, Fowler said.

“I started to realize what would actually end the kind of stuff I was seeing at Uber, what would make it impossible [for] this kind of thing to happen again — the biggest thing was ending the loopholes that exist right now to be able to cover up these issues legally,” she said.

The introduction of the bill comes as the tech industry has seen a wave of harassment, sexism and other workplace issues come to light — only some of which have made it to court. Many tech companies currently employ arbitration clauses.

If it passes, the bill could make it easier for women and other workers, like Fowler, to seek justice in a formal court system rather than settling issues behind closed doors.

“It’s a good thing for companies, too,” Fowler said. “[Forced arbitration] ends up covering up all these underlying behaviors because they just get funneled through this very carefully crafted legal pipeline. You get pushed into this forced arbitration, you get an NDA, you can never talk about what happened to you. This covers up all these really bad instances of harassment that then becomes systemic. If you have more transparency you can catch the problems in your company way more quickly.”

At the time of her employment at Uber, Fowler had indeed agreed to litigate any issues she had with the company in arbitration as a condition of her employment there. The company says that’s no longer the case and all employees have had the option to opt out of arbitration clauses as of 2016.

Fowler has been vocal in her opposition of arbitration clauses and recently publicly asked Uber’s current CEO Dara Khosrowshahi not to push women who are alleging they were assaulted by their Uber drivers into arbitration. Khosrowshahi said that he would see what he could do and offered to have a dialogue with Fowler.

Fowler says they’ve yet to meet in person but the company has reached out and she hopes they will choose to do the right thing.

In addition to the California bill, she also previously filed amicus briefs for three high court cases asking the Supreme Court to consider the ban on joining class action suits as a result of an arbitration clause as a violation of federal law.

For the California assembly bill, AB 3080, Fowler is working alongside the bill’s sponsor, the California Labor Federation, an organization that represents 1,200 unions in the state to bring awareness to the many issues the bill seeks to address. But it is not the first bill of this kind that the organization has attempted to get passed.

In 2015, California Governor Jerry Brown vetoed a previous version of this bill — AB 465 — because he said it was unclear whether arbitration was more or less fair for employees and thus did not want to enact a blanket ban on arbitration.

The bill, the California Labor Federation said at the time, did not intend to do that but instead wanted to make it voluntary.

The new version of the bill being introduced today makes one further concession: It would only apply to future employees. In other words, if AB 3080 is passed, it would not preempt any existing employment contracts in the state. It simply would make it illegal to make opting into an arbitration clause mandatory to get a job.

Still, Fowler and sponsors of the bill are coming up against the same opponents that the first bill faced in 2015. The California Chamber of Commerce has once again listed this bill among its “job killers.”

The Chamber of Commerce argues that prohibiting arbitration would open companies up to increased risk of litigation.

In its opposition, the Chamber writes, “By banning arbitration, the only option left for employees to resolve many labor and employment claims is litigation.

“Several studies support this notion that access to civil courts is not a realistic option for low wage employees,” the opposition reads.

The Chamber of Commerce is joined by a slew of state trade associations including the California Manufacturers and Technology Association and the Civil Justice Association of California. Members of the boards of these organizations include automakers like Fiat Chrysler, General Motors, Ford, Hyundai and Toyota, as well as tech companies like Intel.

When reached for comment, most of the companies referred Recode back to the trade organizations. Intel is a member of the boards of both associations, but has not yet taken a position one way or another on the bill as of yet.

We’ve also asked if these companies require their employees to sign arbitration agreements. Intel does not. We will update when we hear back from the others.

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