There was some concern a few weeks back that an amendment by Sen. Al Franken to the defense appropriations bill, which would prevent the government from working with defense contractors who deny court hearings to their employees over issues like discrimination, harrassment or assault because of binding arbitration process, would be gutted during the conference committee process. Thankfully, that does not appear to be the case.

Sen. Franken’s office tells FDL News that the amendment remains virtually intact, despite concerns from Senate appropriators and even the Defense Department about implementation and contractor exposure to lawsuits. Basically, two parts of the amendment were changed. One is that the language is exempted for contractors with contracts less than $1 million dollars. According to a Franken aide, that means that about 80% of all contractors would be subject to the conditions. The other change is that there is a “national security” waiver to the provisions, but they are far more stringent than what is customary. In this case, if the Pentagon wanted to exempt a contractor from the requirements of the Franken amendment, the Secretary of Defense would have to release a personal statement to Congress explaining why, and make that statement public.

The major provisions of the amendment, inspired by the horrifying story of Jamie Leigh Jones, a KBR employee who was allegedly raped and falsely imprisoned by colleagues and barred from seeking justice through the courts by a binding arbitration agreement, remain. The entire Title VII provision, which allows the individual to sue the employer and not just the perpetrator of the crime, is intact.

Sam Stein has a statement from Sen. Franken:

“I came to Washington to stand up for folks like Jamie Leigh, and stand up to the powerful interests that too often silence their voices,” Sen. Franken said in a statement. “I was gratified to see so many of my colleagues in Congress and so many national civil rights leaders join in this effort. The Jamie Leigh Jones amendment is on its way to becoming law thanks to their work, the work of Chairman Inouye, and the work of the White House. I’m pleased that together, we were able to find a solution that allows victims of assault and discrimination their rightful day in court.”

This amendment affects the fiscal year 2010 appropriation, but Sen. Franken plans to keep on this issue in future appropriations as well, says his aide. That could potentially go outside the defense contractor system.

The amendment vote, where 30 Republicans sided with defense contractors who deny justice for crimes to their workers, has caused significant consternation for those in the GOP who voted against it.

UPDATE: Casey Aden-Wansbury from Sen. Franken’s office gives further explanation on the Jamie Leigh Jones amendment:

The Jamie Leigh Jones amendment targeted the use of mandatory arbitration clauses for tort claims (assault and battery, intentional infliction of emotional distress, false imprisonment, and negligent hiring claims) and Title VII claims. Title VII, part of our country’s workplace civil rights laws, protects people from discrimination based on their race, color, religion, sex, and national origin (and encompasses sexual harassment).

KBR fostered a totally lawless environment, in which sexual harassment was tolerated. When Jamie Leigh arrived in Iraq, she immediately complained of her unsafe housing conditions, and the constant sexual harassment she was subjected to. When she complained, her supervisor mocked her. KBR did nothing to get their workplace under control. Jamie Leigh’s case is simply the most egregious illustration of a much larger problem—employers using mandatory arbitration to prevent employees from exercising their right to their day in court, as guaranteed under federal law.

It’s important to note that the GOP’s stall tactic on the health care bill, forcing the reading of a 767-page amendment on the Senate floor, threatens the ability for the Senate to move to the DoD appropriations bill, where this amendment lies.

David Dayen

David Dayen