rape the republicans.

erosvamp · Post by **erosvamp** » Wed Oct 21, 2009 5:55 pm

http://www.thedailyshow.com/watch/wed-o ... /rape-nuts

Sisyphus · Post by **Sisyphus** » Thu Oct 22, 2009 3:59 am

A new low. But not surprising.

Jaeger · Post by **Jaeger** » Thu Oct 22, 2009 6:09 am

As someone who works in Federal contracting... puh-leeze. The Senate puts ALL SORTS of requirements on contractors they hire. What a bubbling crock of shit.

Unless there's something else in the Bill that's a rider -- that isn't mentioned in Stewart's piece, which wouldn't surprise me, but still... unless we're missing information, that is complete, unadulterated bullshit.

Yes, it's an attack on Haliburton... and apparently the fuckers deserve it.

--Jaeger

motorpsycho67 · Post by **motorpsycho67** » Thu Oct 22, 2009 6:38 am

Jaeger wrote:As someone who works in Federal contracting... puh-leeze. The Senate puts ALL SORTS of requirements on contractors they hire. What a bubbling crock of shit.

Unless there's something else in the Bill that's a rider -- that isn't mentioned in Stewart's piece, which wouldn't surprise me, but still... unless we're missing information, that is complete, unadulterated bullshit.

Yes, it's an attack on Haliburton... and apparently the fuckers deserve it.

--Jaeger

So you think the government should be allowed to hire companies that treat employees that way?

MoraleHazard · Post by **MoraleHazard** » Thu Oct 22, 2009 6:50 am

From my research there is precious little media coverage on this apart from Stewart and other LW outlets. From the little "balanced" sources I could find, there was no rider on this that made it dastardly in some other way, so I don't know if the GOP senators were voting against Franken or against more gov't meddling in private contracts.

The contract between KBR and its employees referred all disagreements to arbitration. Arbitration is generally cheaper for both parties then a lawsuit and no arbitrator is going ignore the facts of the case. Arbitrator, AFAIK cannot and does not award punitive damage (goose, please correct me if I'm wrong). Nothing in the contract prevents an attorney general from pressing criminal charges against the accused rapists. However, how much civil liability does an employer have for the rape of an employee by other employees? Did they create or contribute to an enviornment that caused the rape? I cannot find any real information here.

I do remember the time a hot, early-twenties female KBR employee walked into the dining hall when I was in Kuwait. A loud, fairly raucous dining hall became deathly quiet in seconds as everyone was staring at her. Nobody whistled or catcalled or did anything untoward, but it must have been creepy for her.

I don't think a law that voids contractural requirements for arbitration in instances of criminal acts (all acts, not just the narrowly defined ones in Franken's amendment) is out of order, but I'm not sure what the untinended consequences would be.

One of my insurance clients is going through something similar now. A man was shot by another man at one of my client's gas stations. The victim is suing the big corporation that owns the gas station and the corp is pushing towards arbitration. As terrible as things are for the victim, how much liability does a company have to protect a customer from the criminal acts of another third party?

Should they pay out a couple of million through an arbitrator or $30 million through lawsuit lotto?

motorpsycho67 · Post by **motorpsycho67** » Thu Oct 22, 2009 7:06 am

If it were a non-employee that were raped, would you say the same thing?

Every employer is responsible for their employees conduct while they're on the clock, and when you're working for someone in a foreign country, AFAIK, you're considered on the clock at all times. At least as far as your personal conduct is concerned, you're expected to conduct yourself in an appropriate manner at all times. I don't think rape would be considered appropriate.

What if it happened here in the US? Would you say the same thing?

I don't think there's any way you can justify the company's policy on this. Doing so would set a very dangerous precedent.

Those 30 Senators siding with KBR/Halliburton on this heinous incident is appalling.......... and quite transparent as well.

MoraleHazard · Post by **MoraleHazard** » Thu Oct 22, 2009 7:54 am

I'm unsure of where the law stands on corporate civil liability and I honestly wonder how much liability there is when an employee commits a criminal act that beyond the control or without the knowledge of the employer.

As I mentioned earlier I don't how how much KBR contributed to a culture that would make such acts more "acceptable" if such a term could be used, but it's a big corporation. I'm not positive, but I bet KBR covers its ass with regards to sexual harassment with policies, mandatory training, etc. The local outfit in Iraq may have created such a culture and the company may have liability; I don't know.

Consider this though: If you owned a small independent m/c repair shop. You have 5 employees. You have a written policy in place against sexual harassment, etc. You forbid nudie calendars and pics on the wall, don't allow employees to surf porn at work, etc. You're doing all of the "right things" as an employer. While you're not there, one employee grabs the butt of an attractive female customer. How much civil liability do you believe you have? How would you like to have to pay a $50,000 settlement because your CGL insurance doesn't cover "willful acts"? Then you have to lay off another employee in addition to the butt-grabber because you can't afford to pay him?

I'm not trying to defend KBR per se, and as mentioned earlier, I don't think Franken's amendment is a bad one, though I would broaden to include all criminal acts and not just sexual assault and 1964 Civil Rights act violations. It's just that this has enough moving parts that it's stupid to boil it down to "rape the republicans" as Stewart is trying to do.

Jaeger · Post by **Jaeger** » Thu Oct 22, 2009 8:08 am

motorpsycho67 wrote:
Jaeger wrote:As someone who works in Federal contracting... puh-leeze. The Senate puts ALL SORTS of requirements on contractors they hire. What a bubbling crock of shit.

Yes, it's an attack on Haliburton... and apparently the fuckers deserve it.

--Jaeger

So you think the government should be allowed to hire companies that treat employees that way?

Sorry, you're right, that wasn't clear -- i.e., I think that voting against the bill seems like total evil bullshit, especially considering the existing restrictions put on Federal contractors.

And that's just it -- there are TONS of FAR (Federal Acquisition Regulations) clauses and regulations that specify the requirements of Federal contractors (e.g., Equal Opportunity Employer, HPSD-12). The Senators are obviously being pushed by larger (richer) entities to vote against the bill.

There are always two sides to the story, and I'd very much like to hear the GOP's side... 'cause right now they're doing a shitty job of convincing me (and apparently a lot of people) that they aren't simply 5'10" phalluses wearing neckties.

--Jaeger

motorpsycho67 · Post by **motorpsycho67** » Thu Oct 22, 2009 8:16 am

MoraleHazard wrote:I'm unsure of where the law stands on corporate civil liability and I honestly wonder how much liability there is when an employee commits a criminal act that beyond the control or without the knowledge of the employer.

As I mentioned earlier I don't how how much KBR contributed to a culture that would make such acts more "acceptable" if such a term could be used, but it's a big corporation. I'm not positive, but I bet KBR covers its ass with regards to sexual harassment with policies, mandatory training, etc. The local outfit in Iraq may have created such a culture and the company may have liability; I don't know.

Consider this though: If you owned a small independent m/c repair shop. You have 5 employees. You have a written policy in place against sexual harassment, etc. You forbid nudie calendars and pics on the wall, don't allow employees to surf porn at work, etc. You're doing all of the "right things" as an employer. While you're not there, one employee grabs the butt of an attractive female customer. How much civil liability do you believe you have? How would you like to have to pay a $50,000 settlement because your CGL insurance doesn't cover "willful acts"? Then you have to lay off another employee in addition to the butt-grabber because you can't afford to pay him?

I'm not trying to defend KBR per se, and as mentioned earlier, I don't think Franken's amendment is a bad one, though I would broaden to include all criminal acts and not just sexual assault and 1964 Civil Rights act violations. It's just that this has enough moving parts that it's stupid to boil it down to "rape the republicans" as Stewart is trying to do.

Wow.

Are you trying to downplay the severity of the incident? Because it sure looks like it.

This isn't something you just sweep under the rug like stealing a candy bar. This poor girl is going to have to go through years of therapy to come to terms with this.

The employer is responsible for the employee's conduct. PERIOD. That's not even in question. The issue is whether or not the government should be doing business with companies that have abhorrent policies such as this.

Your comparitive analogy is far off the mark. There's a HUGE difference between grabbing someone inappropriately and rape. And believe me, Halliburton can most certainly afford it.

Plenty of companies have had sexual harrassment suits against them. This is, obviously, much worse.

Rabbit_Fighter · Post by **Rabbit_Fighter** » Thu Oct 22, 2009 9:08 am

motorpsycho67 wrote:
MoraleHazard wrote:I'm unsure of where the law stands on corporate civil liability and I honestly wonder how much liability there is when an employee commits a criminal act that beyond the control or without the knowledge of the employer.

As I mentioned earlier I don't how how much KBR contributed to a culture that would make such acts more "acceptable" if such a term could be used, but it's a big corporation. I'm not positive, but I bet KBR covers its ass with regards to sexual harassment with policies, mandatory training, etc. The local outfit in Iraq may have created such a culture and the company may have liability; I don't know.

Consider this though: If you owned a small independent m/c repair shop. You have 5 employees. You have a written policy in place against sexual harassment, etc. You forbid nudie calendars and pics on the wall, don't allow employees to surf porn at work, etc. You're doing all of the "right things" as an employer. While you're not there, one employee grabs the butt of an attractive female customer. How much civil liability do you believe you have? How would you like to have to pay a $50,000 settlement because your CGL insurance doesn't cover "willful acts"? Then you have to lay off another employee in addition to the butt-grabber because you can't afford to pay him?

I'm not trying to defend KBR per se, and as mentioned earlier, I don't think Franken's amendment is a bad one, though I would broaden to include all criminal acts and not just sexual assault and 1964 Civil Rights act violations. It's just that this has enough moving parts that it's stupid to boil it down to "rape the republicans" as Stewart is trying to do.

Wow.

Are you trying to downplay the severity of the incident? Because it sure looks like it.

This isn't something you just sweep under the rug like stealing a candy bar. This poor girl is going to have to go through years of therapy to come to terms with this.

The employer is responsible for the employee's conduct. PERIOD. That's not even in question. The issue is whether or not the government should be doing business with companies that have abhorrent policies such as this.

Your comparitive analogy is far off the mark. There's a HUGE difference between grabbing someone inappropriately and rape. And believe me, Halliburton can most certainly afford it.

Plenty of companies have had sexual harrassment suits against them. This is, obviously, much worse.

I don't think that was MH's intent at all. Just replace "pinch butt" with "brutally rape" and it makes no difference with regards to the the question . . . . do you still feel like the small MC shop is liable for the actions of a single (or group) of evil-doers, when management has done everything in their power to create a safe environment?

At the end of the day, a question of that gravity should be decided in court, rather than arbitration.

Ames · Post by **Ames** » Thu Oct 22, 2009 9:29 am

I'd have to say that if management was trying to create a safe environment, they should have locked the five suspected rapists in cargo containers and done an internal investigation instead of punishing the woman who brought the allegations to them.

Here are the thirty elected officials who stood up so boldly for the status-quo:

Lamar Alexander (R-TN)
John Barrasso (R-WY)
Kit Bond (R-MO)
Sam Brownback (R-KS)
Jim Bunning (R-KY)
Richard Burr (R-NC)
Saxby Chambliss (R-GA)
Tom Coburn (R-OK)
Thad Cochran (R-MS)
John Cornyn (R-TX)
Bob Corker (R-TN)
Mike Crapo (R-ID)
Jim DeMint (R-SC)
John Ensign (R-NV)
Mike Enzi (R-WY)
Lindsey Graham (R-SC)
Judd Gregg (R-NH)
Jim Inhofe (R-OK)
Johnny Isakson (R-GA)
Mike Johanns (R-NE)
Jon Kyl (R-AZ)
John McCain (R-AZ)
Mitch McConnell (R-KY)
James Risch (R-ID)
Pat Roberts (R-KS)
Jeff Sessions (R-AL)
Richard Shelby (R-AL)
John Thune (R-SD)
David Vitter (R-LA)
Roger Wicker (R-MS)

motorpsycho67 · Post by **motorpsycho67** » Thu Oct 22, 2009 9:33 am

Rabbit_Fighter wrote: I don't think that was MH's intent at all.

Well, I would hope not, but his tone seemed pretty dismissive.

Rabbit_Fighter wrote: Just replace "pinch butt" with "brutally rape" and it makes no difference with regards to the the question . . . . do you still feel like the small MC shop is liable for the actions of a single (or group) of evil-doers, when management has done everything in their power to create a safe environment?

Yes, I do.

Do you think they should just say 'Gosh sorry, hope it doesn't happen again'?

The punishment should fit the crime...... right? Rape is pretty damn serious and KBR/Halliburton shouldn't be let off the hook easily with their own arbitration hearing.

Not to mention the whole point of Franken's amendment, which is to keep the government from doing business with companies that conduct themselves in an abhorrent manner such as this.

It sets a precedent that says 'This is not an acceptable policy'.

Sisyphus · Post by **Sisyphus** » Thu Oct 22, 2009 9:50 am

MoraleHazard wrote:...broaden to include all criminal acts and not just sexual assault and 1964 Civil Rights act violations.

That'd be mighty difficult, given the laws that were broken/circumvented/changed to allow KBR to be in Iraq in the first place. I do believe that all criminal acts committed by employees of Federal contractors are already in the very clearly defined zone of legal/illegal. Maybe someone here can produce a sample of a contract but I bet that things like this are covered.

The fact remains that KBR's contract--however legal it may be--actually holds nobody responsible for this act, which is clearly criminal. To specifically deny any responsibility for an act of criminality, whether committed by an entity or an individual, is --I think we can all agree on this point-- wrong. Any way you slice it, it's wrong, amoral.

Franken's attempt to point this out with a little political theater has succeeded in one thing thus far: pointing out those that either support the status quo or otherwise will also engage in pointless political theater just to try to deny the Democrats something. It doesn't even matter what it is, but these people are willing to wipe their collective ass with an important issue just to poke Al Franken and the Democrats in the eye.

So what is at stake here? Who stands to lose anything from passing this bill? Money, Halliburton, those who stand to gain anything from Halliburton. In that order.

roadmissile · Post by **roadmissile** » Thu Oct 22, 2009 10:01 am

Sisyphus wrote:Franken's attempt to point this out with a little political theater has succeeded in one thing thus far: pointing out those that either support the status quo or otherwise will also engage in pointless political theater just to try to deny the Democrats something. It doesn't even matter what it is, but these people are willing to wipe their collective ass with an important issue just to poke Al Franken and the Democrats in the eye.

So you're telling my those GOP members aren't actually pro-rape? Sometimes it's hard to tell...

/RM

Jaeger · Post by **Jaeger** » Thu Oct 22, 2009 10:19 am

Just to mix our metaphors even more...

http://www.huffingtonpost.com/2009/10/2 ... 28708.html

Curiouser and curiouser, said Alice...

--Jaeger

Sisyphus · Post by **Sisyphus** » Thu Oct 22, 2009 10:27 am

roadmissile wrote:
Sisyphus wrote:Franken's attempt to point this out with a little political theater has succeeded in one thing thus far: pointing out those that either support the status quo or otherwise will also engage in pointless political theater just to try to deny the Democrats something. It doesn't even matter what it is, but these people are willing to wipe their collective ass with an important issue just to poke Al Franken and the Democrats in the eye.
So you're telling my those GOP members aren't actually pro-rape? Sometimes it's hard to tell...

/RM

You really have to wonder. There aren't any riders on the bill, sooo...?
Really, what's up with that?

Guder · Post by **Guder** » Thu Oct 22, 2009 10:27 am

Maybe I'm missing the point at discussion, but it's not about assigning liability, it's about prohibiting mandatory arbitration clauses for specific cases.*

Yonder amendment wrote:
Sec. 8104. (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new

Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.

(b) The prohibition in subsection (a) does not apply with respect to employment contracts that may not be enforced in a court of the United States.

Emphasis mine.

It doesn't prohibit arbitration in any case.

It doesn't assign the least liability.

The only possible question for this amendment is whether it is too broad, but if it is a choice between government contractors (hardly the small shop scenario presented) having to account for themselves in court (in the exclusive and narrow band of title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment), or fucking over individuals, I think I'll side against the leviathans. There's a reason we seem to getting a backlash against corporate hubris and excess.

And since it is specific to title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, opposing it on the grounds of this amendment does support the antithesis.

*[edit to add] I think the more appropriate concept is not allowing corporations to trick employees into waiving their right to trial regarding unconscionable and normally inconceivable circumstances through contractual fine print and legalese. What reasonable person would expect a legitimate American company to protect internal criminal conduct? We might in this group, but is that reasonable expectations? If so, we need a lot more than this little amendment to a purchasing bill.[/edit]

Sisyphus · Post by **Sisyphus** » Thu Oct 22, 2009 10:30 am

Jaeger wrote:Just to mix our metaphors even more...

http://www.huffingtonpost.com/2009/10/2 ... 28708.html

Curiouser and curiouser, said Alice...

--Jaeger

Turns out that if you've ever been beat up by a former spouse/live-in, you're also in the "pre-existing condition" category, and therefore can be denied coverage. Nice.

MagnusTheBuilder · Post by **MagnusTheBuilder** » Thu Oct 22, 2009 10:44 am

Disclaimer: I am not Republican or Democrat.

There has to be an end to how far out to the right the republicans can get. Please tell me that there is a cliff edge or something else similar that they can just fall into/off.
It feels like the democrats have become the middle and the republicans have become the far right crazy.

We don't have a left anymore, we have a middle and a right.

And yeah, I think that if you voted this bill down, you are saying that gang rape and imprisonment is an activity that is condoned, supported and even funded by the federal government. (Lack of info on riders notwithstanding) This feels like children throwing temper tantrums.

Liability is enforced outside of the company, this is true, however how a company deals with the things that happen inside of the company or on company grounds, or under the supervision of the company... really tells about the company. (As the owner of several companies I can say, you are responsible for what your employees do. Tough shit, don't like it? Go work for someone else, they get to be responsible for your actions. That is how it works.)

I don't think that there would have been nearly the uproar if someone in the company had enough of a soul/conscience to assess the situation and determine it was not within the normal scale of liability.

There is a difference between doing what is right and what you are legally required to do. What this company did was wrong, on every level, and the government that I pay for should not continue supporting this.

MoraleHazard · Post by **MoraleHazard** » Thu Oct 22, 2009 10:53 am

Maybe I'm missing the point at discussion, but it's not about assigning liability, it's about prohibiting mandatory arbitration clauses for specific cases.

I was musing on liability because it interests me. I started debating MS67 because it appears he believes the employer has strict liability with respects to all employee actions when they are on the clock.

Guder, thank you for reposting the actual amendment. Perhaps the GOP senators voted against because of this verbiage (emphasis mine) "any claim arising out of ... intentional infliction of emotional distress ... negligent hiring, supervision, or retention."

Any claim means just that, a claim. It will costs businesses much more money to litigate vice arbitrate these claims. Any lawyer worth half his bar membership would immediately include negligent supervision or infliction of emotional distress in any tort claim to avoid arbitration and move things to the court where juries are more sympathetic to plaintiffs. This would hurt small businesses the most, and indirectly, because it applies to government contractors only, the increased costs will then be passed on to the federal government.

MS, don't throw stones at me because I'm looking at this dispassionately as opposed to lockstep hatred of the evil, evil Halliburton. So MS67, in my example do you believe the owner of the small m/c shop has liability?

MoraleHazard · Post by **MoraleHazard** » Thu Oct 22, 2009 11:07 am

The fact remains that KBR's contract--however legal it may be--actually holds nobody responsible for this act, which is clearly criminal.

No contract can remove criminal liability. Also, AFAIK, the contract said nothing about liability, but that all disputes had to be resolved by arbitration versus litigation. If KBR created or upheld an enviornment that contributed to the rape, they would probably held to be criminally liable.

No contract prevents a plaintiff from suing anyway and it appears the plaintiff has:

http://www.khou.com/news/local/stories/ ... 061d.html#

In the above link, the federal government declined to press charges. So, was she raped, or not?

motorpsycho67 · Post by **motorpsycho67** » Thu Oct 22, 2009 6:27 pm

MoraleHazard wrote: MS, don't throw stones at me because I'm looking at this dispassionately as opposed to lockstep hatred of the evil, evil Halliburton. So MS67, in my example do you believe the owner of the small m/c shop has liability?

There's no 'lockstep' anything coming from me. I'm sorry that's your perception.

I don't care if it was Joe Bob's Cornfield in Podunk, Iowa. The policy is just wrong.

Yes, I do believe an owner of a small m/c shop has liability. There should be no double standard here. I said so in my reply to your post. Go read it.

guitargeek · Post by **guitargeek** » Thu Oct 22, 2009 9:31 pm

http://en.wikipedia.org/wiki/Jamie_Leigh_Jones

erosvamp · Post by **erosvamp** » Thu Oct 22, 2009 10:24 pm

MoraleHazard · Post by **MoraleHazard** » Fri Oct 23, 2009 3:32 am

MS, it was this passage:

Are you trying to downplay the severity of the incident? Because it sure looks like it.

This isn't something you just sweep under the rug like stealing a candy bar. This poor girl is going to have to go through years of therapy to come to terms with this.

that caused my lockstep rejoinder. Not trying to offend, but that's the typical left wing emotional appeal to the horribleness of this one case with respects to a law that will affect a lot of other people and needs to be discussed dispassionately. The fact that the defendant is Halliburton which is a favorite LW whipping boy intensifies the need for dispassion.

According to the newslink I posted above, " In 2008, three years after Jones said she was assaulted, a U.S. attorney presented the case to a grand jury. Jones testified before the grand jury, but no one was indicted. "

I'm not sure what to believe, but if grand jury didn't indict anyone, maybe she's making the whole thing up. I don't know. Maybe everyone else is lying or there was a real cover up with the rape kit. Again, I don't know.

I said in an earlier post, the contract requiring arbitration doesn't prohibit the plaintiff from suing. The lady in question did sue, contract notwithstanding. A 3 member panel of the Fifth Circuit allowed the lawsuit to go forward and now KBR is appealing to the full appellate court.

Lastly, I don't believe an employer has liability once they have done everything in their power to create a safe work environment. What those steps are debatable.

motorpsycho67 · Post by **motorpsycho67** » Fri Oct 23, 2009 4:56 am

MoraleHazard wrote:MS, it was this passage:
Are you trying to downplay the severity of the incident? Because it sure looks like it.

This isn't something you just sweep under the rug like stealing a candy bar. This poor girl is going to have to go through years of therapy to come to terms with this.
that caused my lockstep rejoinder. Not trying to offend, but that's the typical left wing emotional appeal to the horribleness of this one case with respects to a law that will affect a lot of other people and needs to be discussed dispassionately. The fact that the defendant is Halliburton which is a favorite LW whipping boy intensifies the need for dispassion.

Wow. I'm stunned at your 'dispassion'. Seems like you'd be one to vote against this amendment with the 30 Republican senators.

Halliburton's policy on this appears to condone rape, and you apparently don't have a problem with that. Appalling.

It isn't just about this one case. This case is about setting a precedent for future conduct of companies that hope to win government contracts. Can you not see that?

And again, it doesn't matter who the defendant is to me.

MoraleHazard wrote: According to the newslink I posted above, " In 2008, three years after Jones said she was assaulted, a U.S. attorney presented the case to a grand jury. Jones testified before the grand jury, but no one was indicted. "

I said in an earlier post, the contract requiring arbitration doesn't prohibit the plaintiff from suing. The lady in question did sue, contract notwithstanding. A 3 member panel of the Fifth Circuit allowed the lawsuit to go forward and now KBR is appealing to the full appellate court.

If that's true, there would be no need for the amendment, right?

So, who's lying?

Here's an interesting take on this.....

http://www.guardian.co.uk/world/2009/oc ... laim-block

Seems like this is far from the first time Halliburton has been involved with a rape case. Apparently they have cultivated an environment allowing this to happen.

MoraleHazard wrote: Lastly, I don't believe an employer has liability once they have done everything in their power to create a safe work environment.

You'd be wrong. An employer absolutely is liable for an employee's conduct.

And FTR, I'm not 'left wing' nor a Democrat. I don't march in lockstep with anyone.

MoraleHazard · Post by **MoraleHazard** » Fri Oct 23, 2009 5:09 am

The following link is about New Mexico law and the employer's liability for the conduct of employees:

http://library.findlaw.com/2000/May/1/132914.html

New Mexico law provides that an employer will be held liable for the acts of its employees when those acts are within the course and scope of employment. The New Mexico Uniform Jury Instruction, given in all such cases where this is an issue, defines an act as falling within the "scope of employment" if:

(1) It was something fairly and naturally incidental to the employer's business assigned to the employee; and

(2) It was done while the employee was engaged in the employer's business with the view of furthering the employer's interest and did not arise entirely from some external, independent and personal motive on the part of the employee.

UJI 13-407 NMRA 1998. Thus, a bar was held liable when its doorman employee assaulted a patron in the bar parking lot. Medina v. Graham's Cowboys, Inc., 113 N.M. 471, 827 P.2d 859 (Ct. App. 1992).

Not every act of an employee is necessarily taken in the course and scope of his or her employment. For example, a hotel escaped liability when an on-duty employee sexually assaulted a child on the hotel premises.

I imagine the law is similar in most other jurisdictions. Also, in your link, the other person claiming sexual abuse while being employed by Halliburton/KBR has been allowed to pursue a lawsuit despite the arbitration clause in her contract. So in both instances; the arbitration clause has been no impediment to the plaintiffs suing Hali/KBR? So why is there need for additional laws?

Halliburton's policy on this appears to condone rape, and you apparently don't have a problem with that. Appalling.

Dude, when you say shit like this, you are putting words in my mouth.

This is how I read the above: An arbitration requirement which is standard in Halliburton's contract condones rape and since I'm not against arbitration clauses per se, I'm condoning rape. Please.

motorpsycho67 · Post by **motorpsycho67** » Fri Oct 23, 2009 5:39 am

Not trying to put words in your mouth, but your position wasn't clear to me.

I honestly would like to know the purpose of the amendment then if it isn't to keep companies from disallowing a lawsuit in their employment contracts.

What do you think MH?

MoraleHazard · Post by **MoraleHazard** » Fri Oct 23, 2009 6:54 am

I agree with you that the goal of the amendment is to prevent companies from forcing arbitration on employees. But I've seen enough frivolous lawsuits to know arbitration isn't always a bad thing.

Forgive me if I'm wrong, but I think you at times are mixing up criminal and civil liability. I'm not sure though.

I know there are ways around the arbitration provisions as evidenced by the two women in question; one lawsuit is moving forward and a 3 member panel of the 5th circuit allowed the suit of Jones to move forward although KBR is appealing. I don't know the arguments used though.

If I were Senator, I would vote against the amendment as written because a "claim" is just too low in my book to override the arbitration provisions and the infliction of emotional distress and negligent hiring, supervision, or retention clauses are just too vague.

I would probably vote for an amendment that read like this:

Sec. 8104. (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new

Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any injury or reasonable suspiscion of injury under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of assault, battery, sexual assault or harassment or false imprisonment.

I'm going to give Franken the benefit of the doubt in that he was trying to make things easier for employees of government contractors and give the GOP senators the benefit of the doubt that they saw some of the pitfalls of the language of the amendment and recognized that there are current ways around arbitration provisions and that the new amendment may be redundant.

12ci · Post by **12ci** » Fri Oct 23, 2009 12:56 pm

motorpsycho67 wrote:I honestly would like to know the purpose of the amendment then if it isn't to keep companies from disallowing a lawsuit in their employment contracts.

perhaps its simply grandstanding by the junior senator from minnesota

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rape the republicans.

rape the republicans.