Supreme Court Set to Review Mandatory Arbitration in the Employment Context

Court will rule on cases involving workers’ rights to sue their employers in court

As reported by the Wall Street Journal the U.S. Supreme Court is slated to make rulings in three cases that involve workers’ rights to sue their employers. The fundamental question is whether employment contracts can allow employers to force workers to bargain away their rights to sue in court over employment disputes.

With the recent shift to a conservative majority within the Supreme Court, employers received a win in early 2018 that upheld their right to force workers to resolve complaints through private arbitration rather than in the court system, and to ban workers from joining their claims into aggregated class action lawsuits to challenge pay practices, discrimination, and other labor violations. Long-favored by courts because of their inherent efficiencies and accompanying tendency to correct the vast power imbalance between large corporations with fleets of high-paid lawyers and individual litigants with drastically fewer resources, class actions tend to level the playing field and give individual workers more of a fair chance in complex litigation.

Employers generally prefer arbitration, seeing it as a cheaper and faster process than litigation. It also preserves the Goliath vs. David structure of a proceeding where a giant corporation faces off against a lone, small challenger. Forced arbitration in employment contracts thus strips away one of the few strengths individual workers can bring to bear against corporate foes that seek to oppress them and take advantage of a corporation’s deep pockets and greater lasting power. Worker advocates say that the arbitration process “makes it harder to address systemic abuses such as pay discrimination because allegations can’t be consolidated into a single class-action lawsuit.” David typically falls to Goliath, and the proceedings occur entirely in private, without open judicial review or a public audience.

In cases of workplace sexual-harassment, worker advocates note that forced arbitration proceedings keeps worker grievances a secret and allow harassers and their employers to avoid public accountability entirely. The three employment law cases currently before the Supreme Court may decide these issues for the foreseeable future, leaving workers isolated and weakened, or alternately seeing forced arbitration restricted or even banned, with justice thereafter emerging from greater balance, openness, and equity.

Read the full article on the Wall Street Journal Site (subscription).

Upholding Employee Rights

Lieff Cabraser has a strong tradition of fighting for employee rights across America. Our employment law class action cases challenge discrimination based on employees’ race, color, national origin, religion, age, gender, sexual orientation, or disability; wage violations, including failure to pay overtime, break time, or vacation time; and misuse of employees’ retirement benefits. We also represent employees who “blow the whistle” on wrongdoing by their employers as well as in other cases alleging violations of the law.