It's a start
In fairness to Microsoft, well done. Shouldn't have taken what it has, but I congratulate them on putting their weight behind something that they still didn't have to do.
About a week after weathering a storm of negative headlines for seemingly bungling an allegation of rape against one of its workers, Microsoft has found just the tonic to restore its squeaky clean image. The Redmond software giant has endorsed US Senate bill 2203, aka the Ending Forced Arbitration of Sexual Harassment Act of …
Congratulate them? It was Microsoft themselves who imposed the arbitration clause on their employees, and who failed to show the least bit of concern for the victim even to the point where if the female staff member legally obtained and enforced a restraining order against the attacker then it was her who would have to move and not the attacker!
This is nothing more than an attempt at a PR whitewash, and I doubt anyone will believe that them backing this proposed new law has anything to do with doing the right thing, when it clearly has more to do with the class-action court case being brought against them and the bad publicity (and potential for lost sales) that it is generating now it is in the public eye.
It was Microsoft themselves who imposed the arbitration clause on their employees,
Calm down in your righteous anger. Your average high tech (and not only high tech) USA contract is a gigantic pile of cut-n-paste drivel with 90% of it originating from the HR dept + lawyers copying someone's else "solution to a potential problem" without giving it a proper consideration. What can be and should be 2-3 pages is instead 60-70 pages of odious crap half of which is illegal in half of the jurisdictions the company operates. From a legal perspective it can be summarized in one word: bullshit.
I strongly suspect that Microsoft's arbitration clauses were not put there out of malice. It was a cut-n-paste + "everyone's doing it, it is industry standard".
By the way, the really evil part of forced arbitration is not the fact that the employee is forced into arbitration. It is the fact that the most evil versions of contracts (I can name the actual Silly Valley companies with those) specify that while the employee CANNOT avoid forced arbitration, the company can. So it can hit the employee with a standard "bankrupt by lawyer fees" gambit without the employee being able to retaliate. There are in fact also a couple of law firms in the valley which specialize in servicing the companies which use these contracts. You can look up either one of them yourself (good idea - to know where not to apply for job).
"I strongly suspect that Microsoft's arbitration clauses were not put there out of malice. It was a cut-n-paste + "everyone's doing it, it is industry standard""
Maybe, but knowing how large companies HR works, if a prospective employee objected, it would be a "take t or leave it" rather than "OK lets remove the clauses you object to". That's one of the reasons big corps hate unions - by treating each employee individually, they can use divide-and-conquer
Maybe, but knowing how large companies HR works, if a prospective employee objected, it would be a "take t or leave it"
What's the point of objecting if the clause is illegal in the jurisdiction you reside? My usual modus operandi used to be: "Read, look for unenforce-able or illegal clauses, double check them if needed with a lawyer, then sign with joyous abandon". Helps a hell of a lot at the end of contract. You just send it back with the relevant bits highlighted in red before the exit interview with HR. Puts a nice and clear context for the conversation.
where if the female staff member legally obtained and enforced a restraining order against the attacker then it was her who would have to move and not the attacker!
You do understand that it's trivial to get a restraining order against someone in the US, right?
If I were MS in that deal, the more important question to me would have been: Has the female employee spoken with the police?
Apparently she did file a report with the police and the police didn't file charges. That seriously smells. Either the police are incompetent OR it's entirely possible that after they looked at the evidence they found that she had not actually been raped. Considering she went to the hospital pretty quickly after waking up they would have used a rape kit on her which, if she had actually been raped, would have been pretty conclusive.
I wasn't there, I don't know.
All I know is that a company can't be held responsible for what happens off their property. I also know that if the police didn't think something happened after all that then, as the company, I can't for the life of me see a reason to punish the guy she accused.
I don't see why it would be up to Microsoft. If she has a valid restraining order, she can have it served on the other person, and they have to follow it, regardless of what Microsoft says. If the order requires the other person to take appropriate action to stay some distance away, then it's not her responsibility to move. Restraining orders can be challenged, and the person should get a lawyer if they think they have a case.
Anonymous for obvious reasons.
No, in California it's not trivial, you have to have sufficient evidence for the police to convince a judge to grant one, you then have to present your case in front of a judge in order for it to continue to be in effect.
So, no, it's not trivial.
You've never have seen he form to request a restraining order in California, The police have no part in it till the order is issued. You go to the court house, fill it out and return it to the court house. No police involvement what so ever.
There are even advocacy groups that helps women suffering from domestic violence fill out the forms, Yes they will help men to. I know this because I helped a family friend get a restraining order from his phyco gf.
So you're talking about the procedure to obtain a DVRO (Domestic Violence Restraining Order) which can only happen during court hours.
If you need to do this when the court is closed, you need to obtain an EPO (Emergency Protective Order) which you do at a police station and typically lasts only long enough for you to get in front of a sitting judge.
So yes, the police can be involved in the process to get one issued, don't assume that just because you've not been involved in this process that it doesn't exist.
"So you're talking about the procedure to obtain a DVRO (Domestic Violence Restraining Order) which can only happen during court hours.
If you need to do this when the court is closed, you need to obtain an EPO (Emergency Protective Order) which you do at a police station and typically lasts only long enough for you to get in front of a sitting judge."
No that's not what he said
"No, in California it's not trivial, you have to have sufficient evidence for the police to convince a judge to grant one, you then have to present your case in front of a judge in order for it to continue to be in effect."
What he said is it's the police that have to convince the judge. Even how you phrased you are going to the judge your self. The way he phrased it the cops are the gate keeper. He never said any thing about emergency.
Oh In California even in California an Emergency Protective Order still needs to go before the court to be valid. Oh and you have to properly serve the person. The kicker is there already hast to be a case against the person This makes getting and EPO silly for two reason. One if there is a already a domestic violence case that the person has filed you might as well file for a regular protection order. Two it takes the same about of time to serve some with and EPO as it does with a regular protective order. The only difference is an EPO can be filled at any hours but like I said it still needs to be heard by the court for it to be valid .
An Emergency Protective Order may be issued on the request of California law enforcement officer anytime of the day or night in a domestic violence case if a law enforcement officer asserts reasonable grounds to believe that the person to be protected is "in immediate and present danger of domestic violence" based on the complainant's "allegation of a recent incident of abuse or threat of abuse by the person against whom the order is sought." (California Family Code Section 6250.) However, an Emergency Protective Order is valid only if it is issued by a judicial officer (judge or commissioner) pursuant to the specific request of a law enforcement officer after the judicial officer has made the findings required by Family Code Section 6251. (California Family Code Section 6250.3.)
Re-reading my post I agree that I could have written it clearer as I was describing the EPO process and I agree with most of what you said except for the part where you cover the EPO process.
The point is that an EPO is the only way to have a restraining order issued outside of court hours (the police take your statement and present the case to the duty Judge), if the Judge agrees that there's a valid risk then they can issue the order and it's valid until you can get to court and apply for a traditional DVRO.
It still has to be served but that can be done very rapidly and outside of court hours so yes, there is a point to the EPO process.
The real point here is that it isn't trivial to get a restraining order in California.
"it's entirely possible that after [the police] looked at the evidence they found that she had not actually been raped."
A more accurate description would be that the police who investigated presented the collected evidence to the appropriate prosecutor, who made a determination that the evidence was insufficient to warrant a rape charge. Alternatively, as very often happens, the accuser, with or without encouragement from the police, did not cooperate in the investigation or did not press her claim.
Claims like this one (presumably the case described at https://www.bloomberg.com/news/articles/2017-12-14/microsoft-intern-s-rape-claim-highlights-struggle-to-combat-sex-discrimination) are difficult. Both participants likely were adults capable of legal consent, both apparently had consumed alcoholic beverages, perhaps to the point where one or both were making poor decisions. We have been told, so far, only one side of the story; in any court proceeding, the accused would have the opportunity to present his side, and to question the witnesses brought against him. The letter to Microsoft from the complainant's lawyer suggests she might have been a poor witness and that prosecution, even with evidence of intercourse and the timely complaint to the police, would have been unlikely to lead to a conviction.
It is not at all clear that corporate HR departments, however constituted, can do justice to such matters when they happen off hours and off company premises.
They can't do justice, but they must not interfere with the justice system itself. They can't violate citizen rights using arbitration clauses (which here will be utterly invalid - but it looks in US companies can buy people's rights), nor they can menace employees telling them if they go to a court and obtain some kind of ruling, they will suffer the consequences.
What this looks like to me is that Microsoft's top management have only just noticed the PR shitstorm, and are doing their best to counter it. That includes not just supporting a fortuitous bit of legislation, but also changing their own internal procedures and rules.
That's a good thing. The only really heinous bit here is that - apparently - some level of management was, previously, able to quash the complaint without the higher-ups being aware of it. (Probably, though not provably, because the top management wanted it that way.)
But now things are changing. And that's good. I don't see the point in carping on what's gone wrong in the past, if it's being addressed properly now.
Of course, if we learn that the new rules still allow (or even encourage) middle management to browbeat, bribe or intimidate female employees out of escalating complaints, then that would be a whole 'nother complaint. But there's no sign of that in this article.
What if coworker A killed coworker B?
Who would you expect to deal with the matter? The company employing A and B or the police / courts?
The impression I get here is that Microsoft is being expected to try, convict and punish the staff member accussed of the crime. Is this normal in the States?
I think the author is clumsily trying to make out that sexual harassment in the workplace is on par with rape, and because of this is confusing the 2 issues, along with a few other commentards on this thread. His reasoning seems to be
1) A rape is investigated but not prosecuted.
2) 5 years later the author pens an article about how the accused got a job and his accuser was not happy.
3) Microsoft implement an employee friendly sexual harassment disciplinary process and the author here seems to believe it's because of his story.
In reality, if a crime is committed, no employee contract can forbid you from reporting it to the police, in fact you are a de-facto accomplice if you don't. The author, here seems to have a bee in his bonnet about something. It's a pity there is no "Hide all articles from this author" button, because I would have pressed it by now.
Did you read the previous article and this one?
"employees would be allowed to take their allegations of sexual harassment against bosses and coworkers to public court rather than be forced, by their contracts, into closed-door arbitration"
Where do you read "clumsily trying to make out that sexual harassment in the workplace is on par with rape" - that's up to the law, and it's exactly to ensure a court of justice decides, and not some company executives, this law has been proposed.
Moreover, the case made public in these days:
"In her letter, revealed to the court, the woman said Microsoft bosses told her that if she obtained and wanted to enforce a restraining order against her alleged rapist, she would have to change departments,"
If she says the truth, MS basically told her that if she pursued anything in a court against her coworker, she would have faced the consequences - it looks a menace of mobbing to me.
Would you like such choice? "We heard you sued your colleague because he had lost your money in a fake investment, if you obtain an order against him we will have to move you to another department...."
No. What's expected from Microsoft is to react to such instances of abuse and create or restore a work environment were people can work without fear that such behavior continues.
But many companies try to keep their image clean by silencing the victim, rather than fire or discipline the perpetrator after an internal investigation found grounds for the accusation.
How should a victim work in peace if the perpetrator is still their boss or colleague? Why should the victim move to a different team or made to leave instead of the perpetrator?
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Something smells off about this....
Guy (I'm assuming it's a guy, but maybe that's my internalised misandry) RAPES a girl, which is a federal crime, and the concern of Microsoft is that she will file a *RESTRAINING ORDER* ?
Forgive me if my US LAW knowledge is lacking but isn't the punishment for rape, you know, jail?
Was this actually rape? Or was this the new feminists definition of rape, which can be pretty much anything ranging from actual rape to he spoke to her and made her a bit uncomfortable?
There is no legal employment contract in existence in the west that can compel a person to not report a crime as hideous as rape.
well some of these things don't make as much sense as they ought to:
that's the Brock unconscious woman rape case where the guy got 6 months. Try telling me there is no way the law can screw up.
I think the general gist here is: take away the ability of companies to apply pressure through their employment contracts to sweep rape and harassment investigations under the carpet
which, besides being the right thing for victims, may also actually help things for people wrongfully accused* - criminal justice has a much higher burden of proof than just hearsay.
Or, to put it differently, would the Catholic church not have been infinitely better off if its tendency to sweep child abuse under the carpet had been legally prohibited and if it had been forced to clean house thoroughly and transparently?
* assuming that the law has been written with a balanced intent to protect victims of unjust accusations
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, ..."
- the Sixth Amendment of the US Constitution
My understanding of contract law is that you can never be held to a contract that diminishes the rights you already have under the law (unless the law itself allows you to waive them). Nor can you be held to a contract that requires you to perform an illegal act*
Forced arbitration is, in effect, the denial of your right to justice for no reason other than you happen to work for a particular corporation, and "justice" applies to both accused and accuser.
( * yes, that does make a nonsense of the idea of a "contract killer", but to be honest, you're in deeper legal waters than this if that happens to be your business.)
So is it the case at the moment that if an employee is criminally assaulted by another employee the company can force them in to an "arbitration" ?
Arbitration meaning " a meeting where we tell you to stfu , and give you some cash" ?
What if the employee finds the terms unacceptable? can they then go to the police like they should have in the first place? or is tough shit?
Whilst I'm no expert in US Law (but I watch Hollywood-made movies so I know *something*, right...?) the employment contract clause at present doesn't read as though it has any impact on a complainant's right to report a potential crime to the police - and therefore its progression to a *criminal* court. Instead it actually refers to the initiation of *civil* law proceedings - ie instead of launching a civil suit of $10m against the employer because co-worker said/did something nasty, this has to be handled through an arbitration process (which I assume is much cheaper and efficient to handle, particularly in the US system).
The UK enforces the same rule on couples wishing to divorce - it doesn't present a wife reporting domestic violence to the police.
Is it just me that thinks the Reg has gone a bit too Daily Mail on this one?
The previous incident they are referring to actually had nothing to do with forced arbitration and according the to the previous Reg article Microsoft were actually encouraging the alleged victim to go to the police. Some of the people commenting here may also want to read the previous article as it clearly states that the matter was reported to the police and they determined that no crime was committed so why are they suggesting Microsoft should have punished an innocent person?
When did we change from presumption of innocence to presumption of guilt?
'When did we change from presumption of innocence to presumption of guilt?' - Because in some locations the police etc are not allowed to disbelieve an complainant and must act upon the accusation.
Add to that and the lack of anonymity for people accused of rape and your in a situation where an accusation alone will loose you your job and with the publicity you'll not be able to find another role in order to pay lawyer fees to help defend yourself.
Don't believe its true, well the first part I saw happen to a ex-colleague who basically took a plea bargain because he could not afford to fight it especially as he couldn't afford parole. The second one I've seen has now got a court date which is 3.5 years from the start of the investigation and >2 years since they got charged.
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