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More employers limiting workers’ ability to sue

In January of 2014, a worker at a New Bedford seafood processing plant died after becoming entangled in a shellfish-shucking machine.

As with many workplace fatalities, the death was followed by a change in policy for the workers. But not the kind you might expect.

The Rhode Island temporary agency that provides much of the workforce for the shellfish company asked employees to sign waivers agreeing they would not sue the plant if they were injured on the job.

Workers are increasingly being required to sign documents like this that waive or limit their right to take legal action under certain circumstances, such as in discrimination or pay disputes, labor lawyers and advocates say.

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Some documents require them to submit instead to mandatory arbitration that keeps employees’ complaints out of court and often precludes class-action lawsuits.

The number of companies using such agreements more than doubled between 2012 and 2014, according to a recent survey by Carlton Fields Jorden Burt, a law firm that represents management on employment issues.

These types of job-related waivers echo the surge in contracts containing arbitration agreements that companies such as credit card issuers and cellphone providers have used to prevent consumers from suing them over billing disputes. The US Supreme Court has upheld such agreements several times in recent years, shooting down a consumer class action against DirecTV earlier this month.

Limiting workers to arbitration is problematic, the advocates said, because that process keeps private the complaints that might otherwise have been made public in the court system. And barring class-action lawsuits prevents workers from banding together over violations that, individually, might not generate a big enough award to make a suit worthwhile.

The Massachusetts Employment Lawyers Association said companies are also imposing other restrictions on workers, such as shortening the time they have to file a claim or moving disputes to other states — where headquarters are located, for instance — that may be more favorable to employers.

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“It’s a huge problem,” said Lori Jodoin, president of the Massachusetts Employment Lawyers Association, an organization of attorneys who represent employees. “It gives [companies] a legal loophole where they can make up their own rules.”

Business groups say these agreements are intended to manage complaints in a timely, cost-effective manner and are not about shielding companies from lawsuits. Companies don’t always necessarily want to avoid court, added Matt Moschella, a partner at Sherin and Lodgen in Boston who represents employers.

“There’s a deterrent effect when an employee sees another employee bring a claim and lose,” he said.

Nonetheless, advocates say more workplace claims of discrimination, sexual harassment, and wage violations are being handled privately, or not being reported at all, which they argue means employers are held less accountable for treating workers unfairly.

“The real concern for a lot of people is what we don’t see, and that is people who opt out of the process altogether because the procedural hurdles appear or are in fact so insurmountable that folks are deterred from exercising their rights,” said David Lopez, general counsel for the US Equal Employment Opportunity Commission, which enforces antidiscrimination laws. “You’re not really able to shine the sunshine on unlawful practices.”

In the past, such arrangements were aimed at executives, but now they are spreading through the ranks. Low-wage workers are particularly vulnerable, lawyers and advocates say, because they tend to be more in need of work and less inclined to object.

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Even temporary workers are being targeted, such as those at the seafood processing plant in New Bedford. The plant is owned by Sea Watch International of Maryland, but many of its line workers are supplied and employed by Workforce Unlimited, a temp agency in Johnston, R.I.

After a supervisor was killed there last year, the federal Occupational Safety and Health Administration in June 2014 fined Sea Watch and the temp agency for multiple safety violations, noting that both companies shared responsibility for the safety of the temp workers.

About a year after the death, Tomasa Ventura, who makes about $9 an hour disposing of shells, said she and her coworkers were asked to sign waivers pledging not to sue Sea Watch if they are hurt on the job. Instead, they could seek workers’ compensation funds from Workforce Unlimited. Ventura said she did not sign the waiver, but many other workers there have, according to advocates at a community workers center in New Bedford that has represented the temp employees.

A Workforce Unlimited executive said in an interview that the waiver was ordered by Sea Watch. The company did not return multiple calls seeking comment.

Advocates say workers’ compensation payments often don’t fully cover their expenses. More to the point, they added, workers should have the right to seek damages from the company overseeing the work site if something goes wrong.

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“You’re creating an atmosphere where the people who have direct control over me don’t really have any great incentive to provide for my safety,” said Claudine Cloutier, a personal injury lawyer at Keches Law Group in Taunton.

Workers in the on-demand economy are also being given limited access to the court system. Thousands of Uber drivers in California who signed arbitration agreements were initially excluded from a class-action lawsuit brought by Boston lawyer Shannon Liss-Riordan, over their status as independent contractors. But a federal judge in San Francisco ruled this month that the arbitration clause was not enforceable due to a technicality in California law.

A bill in the Massachusetts Legislature, recently approved by the Labor and Workforce Development committee, would make it illegal for companies to require employees to sign arbitration clauses and waive other legal rights before a dispute arises.

Associated Industries of Massachusetts opposes it, saying it could lead to more “drawn-out, frivolous, and full-blown court cases.”

“All it would benefit is those attorneys who want to maximize the possibility of getting damages and attorneys’ fees,” said Joseph Ambash, an lawyer at Fisher & Phillips in Boston who represents employers.

But worker advocates say that resolving workers’ grievances quietly without being able to hold companies publicly accountable is unjust.

“Because no one finds out about it,” said Cambridge lawyer Tyler Fox, “what’s the incentive for it not to happen again?”


Katie Johnston can be reached at katie.johnston@globe.com. Follow her on Twitter @ktkjohnston.

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