How to be aware of - and fight against - waivers, releases, and other oppressive terms we're asked to agree to every day
August 8, 2018
Pre-dispute forced arbitration, class-action bans, pre-injury releases, indemnification and hold harmless terms — requiring you to “agree” in some form to abandon your civil and constitutional rights as entry to activities of daily living — are more prevalent than ever.
Many times there is no real choice. As in, “Hey buddy, you interested in a job? Wanna feed your family? Sign this thing that says you can’t hale me into court once I cheat you out of wages, okay?”
Except the terms are not that clear or honest. They are buried in jargon and papered-down so no lay person could possibly understand them. Recently, five out of nine justices on the United States Supreme Court said such an agreement is valid and enforceable anyway.
Sometimes the law allows you to fight oppressive terms after a dispute arises. But it is a costly and time-consuming path. So, now, more than ever, it is important to identify these terms before you sign.
Here is a basic glossary of oppressive terms for the spotter:
“Waiver," “Release” (sometimes more honestly “Pre-injury Release and Waiver”): you agree the other party gets a free pass for the worst possible harm it might inflict on you or a loved one, even if the other party does not make good on its promises. Imagine if your kid says, “Look, I’ll clean my room, but you must agree I’m immune from any future punishment, even if I hurt my baby brother in the process, and even if I don’t clean up my room all that well.” Who wouldn’t jump at that deal? Where to find them: sporting events, school-sponsored outings, non-profit activities, church-sponsored events. Basically, anything that depends on someone else doing the right or safe thing, and for which a signed waiver/release gives absolutely no incentive.
“Arbitration”: in the consumer context, before any dispute arises, you give up your constitutional right to access the courts for a more expensive, less-fair forum. In this secret club, stripped of court protections, you are a nobody while the other party is often well-known due to a revolving-door relationship with the person or persons deciding the dispute. It’s like high school, only worse. Where to find them: everywhere. Look at the terms of service for your phone, cable, and internet for starters. Then look at your credit card and banking agreements. Look at a relative’s nursing home admission paperwork. Medical providers. Rental agreements. Private schools. If you have an employment agreement, you have probably “agreed” to arbitration. If you have quickly scrolled down and hit “agree” with a mouse click, odds are you have “agreed” to arbitration.
“You agree to litigate any claim on an individual basis, and you agree to waive any right to class or collective relief”: the class action ban. Often accompanied by a confidentiality provision, the class action ban and forced arbitration go together like peanut butter and jelly. Because the cool kids are not satisfied just with stacked-deck arbitration, they want to make sure the rest of the class does not pool their knowledge and resources in opposition. Imagine a government that separates dissidents from each other so they ca not communicate, work together, share ideas, or collectively influence any change in society. What kind of government would that be? And before you conjure up the Subway footlong class action case, recall Brown v. Board of Education was a class action.
“Indemnification”: The concept of pre-dispute indemnification would make Lewis Carroll blush. In its most basic form, you agree that if you sue the other party over any dispute in the future, even in arbitration, then the other party gets to recover it all back from you, plus attorney’s fees and costs. So you are effectively suing yourself —but you incur expenses for “both” of you. Also, if a third party sues the other party, and the dispute is minimally related to you in some way, the other party can seek full reimbursement from you for those costs. Through the magic of indemnification, you could also do absolutely nothing wrong and be forced to pay a lot. The indemnification clause often contains a “hold harmless” provision which confirms nothing whatsoever is expected from the other party, because, you know, why not? Where to find them: any contract that feeds off the talents of a legally unsophisticated party (a restaurant or bar vs. musician, publication vs. freelance writer, etc.), agency agreements, construction/home improvement contracts, consumer contracts.
Cross out these terms, if possible. If you have the opportunity, tell the seemingly-well-intentioned person who slides the “oh, just one more form” in front of you (whether in hard-copy or electronic format) that it is not okay—even if you really must sign the ridiculous waiver so your kid can make the field trip.
They will tell you it’s normal. Everybody else signs them. That they have never had a problem before.
It does not matter who the requesting party is: a business, governmental agency, non-profit, religious organization. Nobody should get a “get out of jail free card” for accountability, no matter what product or service they offer. It’s why consumer advocates sometimes refer to these terms, when used in the context of pre-dispute boilerplate, as “agreement asbestos.” They offer no healthy benefits to you, the consumer. Instead, they strip away valuable rights Americans have fought and died for. It’s a small price to object or raise a stink when an organization tries to steal your rights under cover of “paperwork.”
And, who knows, maybe the small objections, the principles in action, and the resulting awareness by people with good intentions, will someday spur more reasonable business practices, if not a change in the law.