One of President Trump’s nominees to serve on the National Labor Relations Board was accused of deceiving the committee that advanced his nomination on Wednesday.
Both William Emanuel and Marvin Kaplan were approved along strict party lines by the Senate Health, Education, Labor, and Pension committee. Full Senate consideration now stands between the two men and a Republican majority on the board.
After the votes, Sen. Al Franken (D-Minn.) complained that Emanuel was evasive during last week’s confirmation hearing, when asked about the impact of forced arbitration agreements on hostile work environments.
“I asked Mr. Emanuel about that and he acted like he had never heard of how mandatory arbitration works,” Franken said.
The senator had specifically asked about the matter in the context of the Gretchen Carlson case. Last year, the ex-Fox News anchor sued the network’s former president Roger Ailes, for sexual harassment. She wasn’t able to sue the company itself, due to a forced arbitration clause in her contract.
After Carlson filed suit against Ailes, as Franken noted: “the other women at Fox then came forward because they got to hear what happened to her—and the same thing happened to them.”
At his June 13 confirmation hearing, when asked about the matter, Emanuel responded: “Senator, I can’t comment on the Gretchen Carlson case. I’m only vaguely aware of it.”
Franken then pressed Emanuel to comment generally about the benefit to workers of being able to hear colleagues settle disputes in open civil suits. Emanuel replied by noting that forced arbitration is legal.
“My reaction is that the Federal Arbitration Act allows arbitration agreements and it provides expressly that the agreements must be enforced as written,” he told Franken.
The exchange left a bad taste in the Senator’s mouth, which he described on Wednesday.
“I’ve had witnesses here who have been somewhat evasive or who didn’t want to buy the premise of my question, but this was really insulting,” Franken said.
The lawmaker noted that Emanuel has represented corporate managers for 40 years, and has “defended their right to invoke and use mandatory arbitration clauses, to prevent employees and classes of employees from going to court.”
Franken additionally noted that forced arbitration agreements have helped bad actors outside the realm of labor law. He said that such terms in contracts prevented lawsuits against Wells Fargo, when the bank signed up customers for millions of accounts without their consent.
Knowledge of the practice became widespread last year. In September, the Consumer Financial Protection Bureau and other regulators reached a $185 million settlement with Wells Fargo, for opening 2.1 million unauthorized accounts between 2011 and 2015.
The CFPB also recently finalized a rule barring banks and credit card companies from getting customers to agree to waive their rights to sue.
Under the Obama administration, the National Labor Relations Board held that mandatory arbitration clauses forbidding employee class action lawsuits were illegal—an abrogation of collective bargaining rights afforded under the National Labor Relations Act.
Emanuel has filed “friend of the court” briefs arguing that forcing workers to give up class action rights for individual arbitration should be considered legal.
The Supreme Court has agreed to resolve disputes over the matter next term, which starts in October.
