HIGHER ED FACULTY

After Supreme Court decision allows forced arbitration agreements and banned class claims, Unions remain last best hope for workers

May 24, 2018 / Sabrina Balderama

The U.S. Supreme Court delivered a blow to workers in a case known as Murphy Oil.  Now, more than ever, there may be no other solution for building worker strength but a Union.

The Supreme Court’s decision holds an employer can require an employee to sign an agreement making arbitration of all work disputes mandatory.  As a condition of employment, often without the worker even realizing it, employers require employees to sign these arbitration agreements, forcing them to give up their rights to pursue claims in court.  These agreements provide no chance to go to court, no matter what the problem.  It has become increasingly common for corporations to insert arbitration clauses into their contracts with employees.

On top of this, the Supreme Court’s decision holds that employers may force employees to sign arbitration agreements that prohibit class action arbitrations—meaning every worker has to take his or her own case individually to arbitration.  Workers claims are usually small, and many workers fear retaliation.  Class actions provide strength in numbers, an opportunity to be heard by a judge or jury, and a means for preventing employers from catching an unjust windfall from hundreds or thousands of relatively small, unpursued wage violations.  The conservative majority ruled employers can force employees to give all that up.

Justice Gorsuch, appointed by Trump, wrote the decision for the majority.  Four Justices dissented in an opinion by Justice Ginsburg, which she announced from the bench.  Justice Ginsburg’s 30-page dissent traces the history of “legislative efforts to protect workers’ rights to band together” through the National Labor Relations Act and emphasizes that in many cases joining together to bring claims is the only way for workers to be heard.

The dissent calls the decision, “egregiously wrong” and the arbitration agreements at issue, “arm-twisted,” “take-it-or-leave-it” provisions that will have the inevitable result of an underenforcement of laws designed to advance the well-being of vulnerable workers.

This anti-worker decision, designed to keep workers from going to court or even arbitration together, makes Unions all the more urgent a need for workers and provides further motivation to elect a strong Congress and president who will pass new laws that protect workers.  The Obama administration and the National Labor Relations Board backed workers in the cases underlying this decision, but after Trump was elected the Justice Department changed course to side with employers.

Between now and the next election cycle, if workers cannot come together to bring class action lawsuits to rectify widespread wrongs in the workplace—wrongs like sex harassment, discrimination, denial of overtime pay, rest breaks and lunch periods—the only way to fight back is to organize.

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