During the nearly seven years he worked as a scaffolder in Maine, Adrian Moss said he was subjected to routine racial discrimination by co-workers and managers at an international company with offices in Gorham.

He left the company, but it rehired him in Maine in 2016. Despite repeated complaints, management made only feeble attempts to address the situation, Moss, a black man, alleged in a complaint to the Maine Human Rights Commission.

Adrian Moss, who now lives in Florida, alleged racial discrimination against his Gorham-based employer, only to learn that, as a condition of his employment, he had waived his right to sue. Legislators hope to provide a remedy for such forced arbitration clauses. Facebook photo courtesy of Adrian Moss

Despite a unanimous commission ruling that there were reasonable grounds to believe his employer had violated anti-discrimination laws, Moss never got his day in court.

Instead, last August, a federal judge in Maine said Moss’ employment agreement required him to resolve his complaint with a private arbitrator hired by the company. Unwittingly, he had waived his right to sue.

“It was a shock to know I had essentially signed my rights away,” Moss said.

As binding arbitration clauses become more common as a condition of employment, Maine lawmakers are debating a law that would effectively deputize private attorneys to take employers to court for state labor and discrimination cases.

Maine Senate President Troy Jackson, D-Allagash, said he introduced L.D. 1693 “to protect the rights and voices of Maine workers.”

“Whether it is a violation of employment law or human rights law, Maine workers should be able to speak out and demand justice,” Jackson said in a statement this week. “And the current law is failing them.”

Like millions of other American workers, Moss signed a pile of paperwork when he was hired.

Concealed in that pile was a document that prevented him from suing individually or in a class-action lawsuit for discrimination, sexual harassment, unfair conditions and other labor violations.

Instead, the agreement forced him to take take complaints to private arbitration, a process that academic research has indicated favors employers and provides less money in settlements than a court case.

Critics say arbitration has no oversight and no standards of legal procedure, such as witnesses or evidence.

“No one explained what we were signing – they offered me a full-time position and I had to sign this paper,” said Moss, who now lives in Florida. “If they have this clause, it should be mandatory that it is understood that you are signing those rights away.”

A series of U.S. Supreme Court decisions dating to 2001 paved the way for widespread use of binding arbitration in employment agreements. In 2018, the court ruled that employers could use arbitration clauses to bar their employees from joining class-action lawsuits.

The Economic Policy Institute, a left-leaning think tank based in Washington, D.C., estimates that 56 percent of non-union private sector employees in the United States are covered by binding arbitration agreements.

Up to 250 employers that use binding arbitration operate in Maine, including huge corporations such as Walmart, Bath Iron Works (which is owned by General Dynamics), Home Depot and Pizza Hut, according to a list compiled by Jeffery Young, a labor attorney with Johnson, Webbert and Young, an Augusta law firm.

“I think people should be concerned, because their rights are being eroded,” Young said. “Their rights to proceed publicly in court are withering away.”

Laws passed in New York and California that banned forced arbitration as a condition of employment have been invalidated by courts for preempting federal law, he said, adding that any similar attempt in Maine would likely fail a legal challenge.

The bill Maine lawmakers are considering would instead provide a workaround to binding arbitration and, supporters say, boost enforcement of Maine’s labor and anti-discrimination laws.

Under the bill, employees or their representatives could bring suit against employers on behalf of the state. Since state agencies are not subject to binding arbitration, the cases could proceed in court. State authorities would have oversight of the cases and could decide how to proceed with them.

If a judge ruled against an accused employer and ordered penalties, the bill would allow the employee or employees involved to collect some of the money, but most of it – 70 to 80 percent – would be awarded to the state.

Supporters of the bill, including the Maine AFL-CIO, ACLU of Maine and Maine People’s Alliance, argue that the state Department of Labor lacks staff and resources to pursue labor violations. Allowing private citizens to act as agents of the state would give workers the power to address violations of law without violating their employment contract, said Taryn Hallweaver, political and legislative director at the Maine People’s Alliance.

The bill “will help rebalance the scales so that the Maine Department of Labor has the resources it needs to pursue bad actors, and employees have the opportunity to access justice,” Hallweaver said in testimony on the bill. California has had a similar law in effect since 2003, she added.

But David Clough, state director of the National Federation of Independent Business, worries that giving private actors state authority would leave small businesses vulnerable to more litigation.

The state pursues labor and discrimination cases in the public interest, while private attorneys and their clients are sometimes motivated by the possibility of an out-of-court monetary settlement, Clough said.

“A lot of suits never go to trial – it is a matter of forcing the business to agree to something to avoid trial costs,” he said. “You don’t have a situation like that when the state agency is enforcing it.”

Maine Attorney General Aaron Frey also has raised concerns about the breadth of the bill. There are likely violations that go unaddressed because of binding arbitration, Frey said, but he isn’t sure his office could handle the caseload if it were asked to take it on.

“I think we have the expertise, I understand that there are issues out there, but I can’t say if our capacity has been tested,” Frey told lawmakers in a work session on the bill Wednesday.

Another issue is whether it is appropriate to delegate the state’s authority to private attorneys.

“I’m not convinced the only way to increase enforcement is to shift to the private bar the use of the state’s name,” he said.

Lawmakers on the Labor and Housing Committee are expected to debate the bill and amendments next week.

Roxy Petrovich, 27, of Woodstock, hopes the bill passes. Petrovich said she told management at the South Paris fast-food restaurant where she worked that a coworker was sexually harassing her, but they claimed they couldn’t stop it because there was no evidence.

Petrovich said she had intended to file a human rights complaint until she realized she’d unknowingly signed a binding arbitration agreement when she was hired. Petrovich said she was demoralized and ultimately left her job.

She presented her story at a news conference on the bill at the Maine State House this week.

“After reading the forced arbitration, I felt completely powerless because there was nothing I could do,” Petrovich said in an interview. “I essentially gave up, which is exactly what a forced arbitration is supposed to do – it is supposed to intimidate you out of pursuing it.”

If the bill succeeds, Petrovich said, she hopes future workers – like her young daughter – will be able to get justice if they are mistreated on the job.

“It is going to help reinforce the rights that we supposedly have, but can’t do anything about because of arbitration,” she said.

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