A bill considered by a Missouri House Committee on Wednesday could prevent companies from requiring employees to sign non-disclosure agreements when arbitration settles sexual harassment claims.
State Rep. Kevin Corlew, R-Kansas City, introduced the bill, which would prevent companies from requiring confidential agreements in arbitration cases used to settle matters of sexual harassment, sexual assault, human trafficking or other criminal offenses. Corlew told the committee this could be one way to prevent sexual harassment from happening in workplaces across the state.
Previous U.S. Supreme Court cases found federal law allows companies to use mandatory arbitration to settle workplace disputes. This usually prevents employees from suing in grievances involving workplace issues like sexual harassment.
Corlew said Missouri can take this step to at least bring transparency to forced arbitration cases.
"In order to prevent arbitration all together from a certain claim, Congress has to do that," Corlew told the committee. "But what we can do is make sure in Missouri that you cannot have a non-disclosure agreement."
"What we've been doing isn't working and we need to do something different," said Jennifer Carter Cochler, public policy director for the Missouri Coalition Against Domestic and Sexual Violence. "If they don't have to maintain accountability and there can be more transparency, that would be helpful."
Two House committees advanced a different Corlew bill earlier this session that attempts to strengthen arbitration agreements and make them a cheaper method to settle disagreements between employers and private at-will employees. Corlew told the committee that bill will likely not advance on the House floor. This clause was part of the bill, and he hoped to see it pass this year.
Forced arbitration agreements usually prohibit employers from bringing class-action lawsuits against employers. Unlike labor arbitration cases where both parties run the hearing, employers develop, manage and force mandatory employment arbitration on employees.
From 1991-2017, the amount of private-sector non-union employees subject to forced arbitration agreements rose from just over 2 percent to more than 55 percent, according to a 2017 Cornell University Study. In all, about 60 million Americans are now subject to the agreements.
The federal Equal Employment Opportunity Commission received about 7,000 sexual harassment complaints from employees, which must notify the agency about alleged discrimination before filing a federal lawsuit. In 2016, sexual harassment claims represented about 3.5 percent of claims received by the American Arbitration Association, according to the Wall Street Journal.
Only about 1,900 mandatory arbitration agreements are filed nationally, according to the agreements, meaning just one in 32 employees subject to forced arbitration files a claim.
Large companies with sophisticated human resource policies and good legal counsel were more likely to have forced-arbitration agreements. About 65 percent of companies with 1,000 or more employees had mandatory arbitration agreements, according to the Cornell study.
Last year, the General Assembly passed Senate Bill 43 which requires workers discriminated against to prove the bias was the explicit reason they were fired. The previous standard required only that workers proved that bias contributed to their termination.
Missouri NAACP President Rod Chapel Jr., told the committee he supports efforts to reform a secret process like arbitration. Still, he had concerns about how Senate Bill 43 affected workers' ability to hold employers accountable.
"To come back now and say that this bill is going to offer anybody any protection, I find incredible," Chapel said. "If you can't sue them, how do you hold them accountable?"
He also said the narrow scope of the bill focusing mostly on sexual harassment and sexual assault concerned him.
"If we are talking about legitimately trying to make something better, you got to do it for everybody," Chapel said. "If you're going to do this for women, I think you going to do this for every protected category."