When Jeeva Muhil found out from her union that she and her coworkers might have signed away their rights to sue their employer, she couldn’t stop thinking about it.
The so-called mandatory arbitration agreement, a recent addition to the OTG employment contract, would force workers to settle their disputes outside of court — and to keep details of the arbitration confidential. Muhil, 23, a bartender at one of OTG’s iPad-laden restaurants at Philadelphia International Airport, feared that such secrecy could put her coworkers in danger, especially in an industry that’s rife with sexual harassment.
Not to mention that the agreement barred employees from joining any kind of collective action against the company, hindering their power in case of a dispute. Most workers did not know whether they had even signed it.
To Muhil, the whole thing felt sneaky, underhanded.
Muhil’s experience isn’t unique. More than half of private-sector employees in the United States who are not represented by a union have signed arbitration agreements, according to a 2018 report from the Economic Policy Institute, and they’re more prevalent in low-wage workplaces, such as OTG’s airport bars and restaurants, as well as industries that employ more women and African Americans. There’s little data on how many unionized workers are covered by these agreements.
Proponents of arbitration say it’s a faster, cheaper way to solve a dispute, but labor advocates have criticized the practice of forced, or mandatory, arbitration, saying the system is stacked against employees: Workers are less likely to win in arbitration, and when they do, they usually get lower settlements than they would in court. Most workers don’t end up entering arbitration at all, New York University law professor Cynthia Estlund found in her 2018 report, “The Black Hole of Mandatory Arbitration.” That, in part, is because it’s difficult for workers to get legal representation, as lawyers generally get paid only if they win — and these cases have a lower chance of success.
That’s why workers have been pressuring their employers to end the practice, to mixed success. It’s largely been white-collar workers who have won this battle: Microsoft and Uber have ended forced arbitration for sexual-harassment claims, while Google has eliminated it all together after months of employee organizing.
OTG workers, represented by the union Unite Here, are now hoping to get their employer to end the practice as they negotiate their next union contract. But so far, the company has refused, said Muhil, who is on the bargaining committee.
OTG, the biggest food-service employer at the airport, which also runs eateries at Newark Liberty and John F. Kennedy International, declined to comment, citing ongoing negotiations. But Eric Brinker, vice president of experience for OTG, said in a statement that "OTG has always and will always support the rights of our dedicated crew members, and any workplace concerns will always be addressed.”
Unite Here said OTG would not say how many workers had signed the arbitration agreement except that it began using the agreement as part of its employment contract a year or two ago. The union estimates that, of the more than 200 unionized OTG workers in Philly, 50 to 100 workers have signed it .
The company’s use of the arbitration agreements fits into a pattern, said Hugh Baran, an incoming fellow at the National Employment Law Project whose focus is mandatory arbitration in low-wage workplaces.
Because the Supreme Court has continued to rule in favor of employers on the topic, Baran said employers “are flexing their muscles a little bit, seeing how far they can step.”
And the effects can be chilling for workers — even if the arbitration agreement is not ultimately enforced. It’s true that many workers don’t realize they’ve signed these agreements, Baran said.
But for those who do? “That has its own kind of power and force,” he said. “It’s very discouraging.”
As is, it’s risky for low-wage workers to speak up about discrimination or sexual harassment. This added barrier makes it even harder, which is why, he said, when it comes to most potential arbitrations, people just give up.
That resonated with Tajee Taylor, a server at Mezzogiorno, an Italian restaurant run by OTG at the airport, who doesn’t know whether she’s bound by the agreement.
“It’s ridiculous that I have to question what I signed or what I didn’t sign,” she said, “and if something happens and that paper’s thrown in my face?”
Rich Lazer, the city’s chief labor official, criticized OTG’s use of the practice.
“As one of the largest concession employers within the Philadelphia International Airport Terminals, OTG could be a model employer that promotes and secures the rights of their workers," Lazer said in a statement. “Instead, they have chosen to limit employees’ rights by requiring forced arbitration agreements upon hire.”