Earlier this week, the Supreme Court killed one of the few remaining mechanisms for employees to get some measure of justice for the illegal acts of their employers – class arbitrations. The National Labor Relations Act (“NLRA”) was enacted in 1935 to protect the right of workers to band together and engage in collective action for their mutual aid and protection. Normally, the NLRA protects workers in the context of a union- when the workers are forming a union, when they are engaged in collective bargaining, and during strikes. However, even in non-union contexts, the NLRA protects workers who engage in collective action.
In Epic Systems Corp. v. Lewis, the Supreme Court decided that the NLRA does not protect the right of workers to engage in collective action through class-wide arbitrations, and instead, employers can compel employees to one-on-one arbitration for any workplace disputes or claims. In doing so, the Court ignored the realities of employment arbitration agreements and shifted the power squarely to employers.
Employees rarely “agree” to arbitration. Employees are often confronted with take-it-or-leave-it arbitration agreements – if the employee doesn’t sign, she doesn’t get the job. In the past, many arbitration agreements would require employees who sign the arbitration agreement to waive their right to go to court, and instead forces the employee into closed-door arbitrations. Usually the agreements include any claims – including discrimination and wage and hour claims.