One of the most important legal tools that exists to protect against corporate wrongdoing is allowing harmed individuals to band together to sue as a class or collective action. Last week, the U.S. Supreme Court ruled that employers can use forced arbitration clauses in employment contracts to block employees from bringing collective and class action lawsuits against their employer. As a result, employers will have free rein to force employees to sign arbitration agreements that waive the right to bring collective or class actions as a condition of employment.
This is a devastating blow to workers’ rights because it is difficult for workers to prove violations of the law such as wage theft or discrimination if they cannot band together with co-workers to show a pattern of abuse. Class actions are also more efficient and can be the only feasible way to bring small dollar claims since the cost of bringing a case can outweigh the monetary harm to any one person but the wrongdoing was widespread. Last week’s SCOTUS decision, Epic Systems v. Lewis, will herald in an era of further restrictions for workers’ access to the courts and drastically weaken the ability to achieve justice in the face of accountability for employers’ wrongdoing. Unsurprisingly, the U.S. Chamber of Commerce’s hands are all over this misguided decision.
The Chamber filed a “friend of the court” amicus brief in support of the employers, arguing that the National Labor Relations Act (NLRA) does not protect against forced arbitration as the employees’ legal team argued it does. It makes sense that the Chamber is so invested in advocating for weak employee protections; this fits in with the Chamber’s long legacy of hostility toward workers’ rights. The corporations that make up the Chamber’s membership have a financial interest in employers’ unmitigated ability to dictate all the terms of employees’ contracts.
The Chamber’s allies in the corporate sphere are already jumping at the opportunities provided by the Court’s decision. Shortly after the decision was announced, employment firm Ogletree Deakins released an automated ‘DIY’ tool for companies to include forced arbitration clauses in their contracts.
The Supreme Court’s ruling is alarming to civil rights and consumer rights activists who worry that the decision will limit employees’ access to justice in order to fight a whole host of corporate wrongdoing including discrimination, wage theft, and sexual harassment. Just this week, in light of the Epic decision, Chipotle petitioned a court to exclude more than 2,000 persons from an ongoing wage theft lawsuit because the company argued the workers signed arbitration agreements that prohibited them from joining any class actions.
In her dissent, Justice Ruth Bader Ginsburg noted that “[i]t would be grossly exorbitant to read the FAA [Federal Arbitration Act] to devastate Title VII of the Civil Rights Act of 1964 and other laws enacted to eliminate, root and branch, class-based employment discrimination.” She also called on Congress to pass legislation that would affirm the right of employees to join class actions to oppose discriminatory employment contracts such as violations of equal pay for women.
Public Citizen is committed to doing just that by working to make sure the Arbitration Fairness Act is passed, which prohibits forced arbitration for employment, consumer, antitrust or civil rights disputes, and also by spearheading corporate campaigns to call on individual companies to voluntarily end the use of forced arbitration clauses. If the Arbitration Fairness Act were to receive a vote—something that’s not likely in the current Congress, unfortunately—you can bet that the Chamber’s voice would bellow in opposition as it has done in the past.
As Public Citizen noted in its own friend of the court brief that we filed in support of workers, access to the courts is an essential right for workers and consumers to in standing up to corporate abuses. The Chamber, it seems, would prefer to let those abuses run rampant.