The Supreme Court is back in session and some key workers’ rights issues are at stake. Last Monday, the Court heard oral arguments in three consolidates cases, Epic Systems v. Lewis, Ernst & Young LLP v. Morris, and NLRB v. Murphy Oil USA, concerning arbitration. Arbitration is a method of resolving disputes between parties in a proceeding before a person who is not a judge but is empowered to settle the dispute.
Many employers require workers—as a condition of employment—to sign contracts forcing them to settle any future claims they may have against the employer in arbitration, rather than in court. The specific question the Supreme Court must now decide is whether employers can force employees to resolve disputes individually through arbitration, rather than joining together in court or in arbitration with other employees who may have similar grievances.
The ability of employees to come together to pursue joint, collective actions, such as collective arbitration, against employers is especially important for low-wage workers who often have similar complaints against an employer such as wage and hour violations or discrimination claims. But the cost of arbitrating that case individually far surpasses the employee’s potential recovery, making it a non-viable option for low-wage workers. As Justice Ginsburg stated during oral arguments, “There is strength in numbers. We have to protect the individual worker from being in a situation where he can’t protect his rights.”
Mandatory arbitration often deprives individual workers of their rights, and being unable to assert claims in conjunction with others will further hurt workers. For example, ABB Community Advocate Natasha Jackson experienced the injustice of arbitration firsthand. Her employer, Rent-A-Car, pushed her off the job because she had a lifting restriction during her pregnancy and refused to accommodate her even though they accommodated other employees with on-the-job injuries. Because of a mandatory arbitration agreement, she had to bring her pregnancy discrimination claim in that forum. After a process that took over two years, the arbitrator found the company’s action did not constitute pregnancy discrimination. While Natasha did not attempt to bring a joint action, her story highlights the need to curb rather than expand the scope of mandatory arbitration.
We are going to keep a close eye on this case and will provide updates when the Supreme Court issues their ruling.
