Fighting THE LEGAL PROFESSION’s Use of
Forced Arbitration
COERCIVE CONTRACTS & THE LEGAL PROFESSION
Corporate law firms literally invented the types of coercive contracts that keep workers from enforcing their civil rights—and they’re even using them against their own employees, including non-attorney staff.
We’re fighting back against the secret clauses that let BigLaw avoid accountability for its harassment and discrimination epidemic. Because if law school teaches us anything, it’s that rights without a remedy might as well not exist.
We believe no one—not fast food workers, not on-demand drivers, and not even corporate lawyers—should have their access to their civil rights privatized.
While we hope information about which law firms still subject their employees to forced arbitration is useful to law students and other job seekers, we invite you to join our broader fight to end coercive contracts for everyone. As members of the profession responsible for this mess, it’s our responsibility.
In Practice
A fast food worker realizes her employer isn’t paying her or her coworkers the overtime they are owed by law. If she complains to her manager, she risks being fired without any recourse.
She looks for a new job. But when she tells her boss she quits, he warns her that she can’t take a job at another restaurant because of the non-compete clause she signed—even if it’s not enforceable where she lives.
She can’t afford a lawyer. Because of the class action waiver in her contract, she can’t band together with her coworkers to bring a collective action to share the costs of bringing their small claims.
If she’s able to find a lawyer who can help for free, her lawsuit will almost certainly get kicked out of court because of a forced arbitration clause. Instead, an arbitrator hand-picked (and often paid) by her employer gets to decide how much she is owed.
Even if she wins her back wages against the overwhelming odds, she can’t tell her coworkers how she got justice because of her NDA. Because of the coercive contract terms she didn’t even know she signed, it’s almost impossible for her to get paid what she’s owed.
Forced Arbitration & Your Future
The #MeToo movement exposed how coercive contracts silence victims of harassment, discrimination, and other abuse. In 2018, news broke that a major law firm began requiring its employees (including summer interns!) to sign away their rights to bring claims through forced arbitration and NDAs—effectively silencing them about abuse they might experience on the job.
After public outcry, the firm announced that they would “no longer require any employees, including summer associates, to sign any mandatory arbitration agreements.” But even though more than 50 law schools asked all employers to disclose if they use coercive contracts, many have failed to answer—including firms we know to use them. Since 2018, many firms have dropped coercive contracts in response to pressure from students, so we’re turning up the heat on those that have not.
Why We Care
Why law students care about coercive contracts.
“I made sure to check the results of the survey and only to bid on firms that did not have non-disclosure agreements or mandatory arbitration agreements in their contracts. It is crucial that a law firm provides its employees with a fair and safe workplace, and any firm that hides behind mandatory arbitration agreements or NDAs clearly does not feel comfortable in its ability to do so. This is not an issue for women alone to care about. A firm’s use of these contracts is an indictment of its character, and that should concern every one of its employee, regardless of gender.”
Steven Palmer
Harvard Law School
“I participated in the Early Interview Program at Harvard Law School and was extremely grateful to PPP for their efforts to ensure that 1Ls had access to information about which employers use mandatory arbitration and NDAs in their employment contracts. As a result of the information they helped provide on EIP employers, I was able to tailor my bid list to employers who I knew do not use these unfair labor practices. Moreover, PPP ensured that I and my classmates had information on the effects of mandatory arbitration and NDAs in employment contracts so that we could make this decision from an informed perspective.”
Kate Peiffer
Harvard Law School
What We Ask
We’re asking our law schools to protect our ability to vindicate our legal rights, should we experience workplace discrimination or harassment, in line with the non-discrimination policies that many of our schools have for employers who recruit on our campuses.
Not only would such a policy protect our students and alumni, it is an opportunity for our law schools to use their considerable power in service of justice to solve an access to justice issue for employees throughout the legal profession.
It is not enough to ask employers to disclose if they require forced arbitration and nondisclosure agreements related to sexual harassment. Merely making such information available places yet another unfair burden on people of color, LGBTQ people, women, and other vulnerable communities to self-select out of valuable employment opportunities.
Secret arbitration and mandatory NDAs also risk creating discriminatory spillover effects for our campus community by chilling reporting of harassment and preventing students from seeking accommodations under Title IX.
Climate surveys are widely recognized in the school and employment context as a best practice for gathering critical data about the prevalence and forms of sexual harassment and other forms of discrimination.
Law students who work at firms typically already submit a summer employment evaluation; questions about workplace harassment and discrimination could be added to these already-existing informational tools. Law schools’ workplace climate survey tool should comply with best practices for measuring harassment and workplace abuse identified by social science experts. The survey should be anonymous and any potentially identifying information should be omitted from public disclosures.
The results should be compiled into an annual report and made available to students in advance of campus interview programs.
This comprehensive questionnaire, which should be developed in collaboration with students and HLS affinity groups, should include questions designed to build a comprehensive picture of the status of women, people of color, LGBTQ individuals, people with disabilities, and other marginalized groups within the responding organization. Questions should relate to equity within promotions, use of parental leave, number of settled harassment claims, etc. The results of this questionnaire should be published and made readily available to students well in advance of campus recruitment and interviewing.
The questionnaire should help students make informed decisions about where they choose to begin their careers. While some of this information is presently available, it is neither sufficiently comprehensive nor readily accessible. Streamlined data collection and distribution will allow students—especially those who have historically been discriminated against within the legal profession—to exercise control over their career choices in ways they are currently unable to do.