In Epic Systems Corp. v. Lewis, SCOTUS, by a 5-4 vote (PDF below), just delivered an epic blow to workers. The U.S. Supreme Court ruled that workers may not band together to challenge violations of federal labor laws. Justice Neil Gorsuch wrote the opinion for the majority. It’s an interesting opinion, with potentially far-reaching political ramifications, as discussed below.
Justice Gorsuch opined that 1925 Federal Arbitration Act trumps the National Labor Relations Act and employees who sign employment agreements to individually arbitrate claims must do so on an individual basis. Justice Gorsuch wrote, “The policy may be debatable, but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written…While Congress is of course always free to amend this judgment, we see nothing suggesting it did so in the NLRA — much less that it manifested a clear intention to displace the Arbitration Act. Because we can easily read Congress’s statutes to work in harmony, that is where our duty lies.” Justice Gorsuch almost seems to be pleading for some legislative clarity.
Justice Ruth Bader Ginsburg (aka. The Notorious RBG) wrote the dissenting opinion.
Calling it, “egregiously wrong” noting, “the edict that employees with wage and hours claims may seek relief only one-by-one does not come from Congress…It is the result of take-it-or-leave-it labor contracts harking back to the type called ‘yellow dog,’ and of the readiness of this Court to enforce those unbargained-for agreements. The FAA demands no such suppression of the right of workers to take concerted action for their ‘mutual aid or protection.” Justice Ginsburg then urged Congress to correct the Court’s elevation of the FAA above the NLRA.
What Epic means is that employers can require employees to sign arbitration agreements, waiving their 7th Amendment right to trial by jury and their right to class arbitrations. So, employers can violate the law as to entire classes of people, but only pay for the violations to employees courageous enough to bring individual claims. Of course, employees are then compelled to arbitrate their grievances, behind closed doors, in front of an arbitrator, who stands to get repeat business from companies they side with, and not employees they side with. So, rather than open and public hearings, which is kind of a thing our country was founded upon, we have clandestine decisions, and people are amazingly okay with that.
Some of you may remember that Justice Gorsuch was appointed by President Trump, after then President Obama nominated Justice Merrick Garland to replace Justice Antonin Scalia (R.I.P.) on the Nation’s highest bench. However, the Republican controlled Senate refused to hold a hearing, or vote on the nomination. That’s not the only Obama vs. Trump tie to this case. The Department of Justice, acting under President Obama sided with the National Labor Relations Board and the employees, arguing that employers couldn’t strip employees of their right to collective action under the National Labor Relations Act. But, Trump’s Department of Justice reversed course, siding with the employers. “Make Wage Theft Easier” will probably garner less support than “Make America Great Again”. Stay tuned.
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