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Supreme Court Decision Delivers Blow To Workers' Rights

May 24, 2018
In Epic Systems v. Lewis et al., the Supreme Court’s newest Justice, Neil Gorsuch, sided with big corporations and dealt a serious blow to workers’ ability to stand together to enforce their rights collectively.  The Court ruled that businesses can require – as a condition of accepting a job – that workers agree to pursue any disputes one on one in individual arbitration against the company and give up their rights to class or collective actions.  As Justice Ginsburg noted, the corporations before the Court did not even require a signature, much less an in-depth review or negotiation of the relinquishment of such a critical right; rather, employees received notice via email that if they continued to work, they implicitly accepted all the terms buried in their employment contracts, including individual arbitration.  The majority’s portrayal of the issue – suggesting these agreements to individually arbitrate were bargained for at arms-length by parties of equal power – is as disingenuous as it is disturbing.  The Court appeared deaf to the reality of the imbalance of power and the purpose of the NLRA, which was designed in recognition of the barriers that workers often face in raising concerns alone.  According to the Court, “the parties before us contracted for arbitration” and the Federal Arbitration Act requires that ‘contract’ to be enforced, seemingly at any cost.  You can read the full article here.
Forced arbitration clauses have been on the rise in recent years because they allow corporations to stack the deck and deprive their employees of access to courts.  See, e.g., “Arbitration Everywhere: Stacking the Deck of Justice.” Now, the Supreme Court has sanctioned forced arbitration even where it deprives workers of their rights to collective action, to band together for “mutual aid and protection” traditionally protected by the NLRA.  The opinion appears to take us back to the days of “freedom of contract,” prior to the passage of many of the labor laws that were designed to provide bedrock protections as a salve to that “freedom.”  
The Court’s decision is particularly disturbing in its implication for low-wage employees who are victims of wage theft.  As Justice Ginsburg recognized in dissent, wage theft is epidemic, yet many workers are unable to pursue their individually modest claims unless they sue together as a class or collective action.  She predicts: “The inevitable result of today’s decision will be the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers. The probable impact on wage and hours claims of the kind asserted in the cases now before the Court is all too evident.”
Let’s work to prove that prediction wrong.  Support us today and stay tuned for ways you can join us in our work to ensure that the Epic decision does not have epically dire consequences.

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