By banning mandatory arbitration clauses and class and collective action waivers, Congress could restore a fundamental workers right
Last term, the Supreme Court dealt a significant blow to the fundamental right of workers in this country to join together to address workplace disputes. In Epic Systems v. Lewis, the Court, by a 5-4 majority, held that an employer may lawfully require its employees to agree, as a condition of employment, to resolve all workplace disputes on an individual basis in arbitration. Siding with employers and the Trump administration, the Court’s decision paves the way for the majority of workers in this country to be forced to sign away their right to pursue workplace disputes on a collective or class basis. Available data suggests that, unless Congress acts, more than 80 percent of workplaces will subject their workers to mandatory arbitration with class and collective action waivers within six years.
Mandatory arbitration clauses rob workers of their right to take their employer to court for all types of employment-related claims, forcing workers into a process that overwhelmingly favors employers. Class and collective action waivers go one step further, forcing workers to manage this process alone, even though these issues are rarely confined to one single worker.
Workers depend on collective and class actions to enforce many workplace rights. Employment class actions have helped to combat race and sex discrimination and are fundamental to the enforcement of wage and hour standards. Without the ability to aggregate claims, it is very difficult, if not impossible, for workers to find legal representation in these matters. This is particularly true for low-wage workers, whose cases are unlikely to involve large enough awards to attract attorneys to invest time in the case. Class and collective action suits allow workers to pool their claims, making it possible for an attorney to earn enough to make the case worth pursuing.
Today, Senate Democrats joined their colleagues in the House in responding to the Court’s misguided decision with the Restoring Justice for Workers Act. This critical legislation bans mandatory arbitration and class and collective action waivers in labor and employment disputes. The bill is an important first step towards shifting the balance of power between employers and workers.
The legislation is especially important as we seek to change the epidemic of sexual harassment and discrimination that has been exposed by the #metoo and #timesup movements. We must be able to use our collective voice and our collective power to do so. It is only when we act together that we are able to produce meaningful change. We cannot allow the Court to erode our right to collective action. We must join together to demand that Congress pass the Restoring Justice for Workers Act.