Ending individual mandatory arbitration alone fails most workers: For real worker power, end the ban on class and collective action lawsuits
Uber made news yesterday when the company announced that it will end mandatory arbitration for sexual harassment and assault complaints. Lyft quickly followed suit and said that it would also do away with mandatory arbitration agreements for sexual misconduct claims. These companies are the latest in a growing number of corporations that have moved to eliminate mandatory arbitration agreements for sexual harassment claims. There is no doubt that these companies are being driven to action by the power of #MeToo and #TimesUp. And, while a move away from mandatory arbitration by firms like Uber and Microsoft should be celebrated as a victory for these movements, it is important to recognize that for women in low-wage jobs, challenging workplace sexual harassment and assault remains largely impossible, unless companies also end bans on class and collective action.
Workers depend on class and collective actions to enforce many workplace rights. Employment class action cases 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 would be 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. That is the power of class and collective action suits: they let workers pool their claims, making it possible for an attorney to earn enough to make the case worth pursuing.
Banning mandatory arbitration in sexual harassment and sexual assault claims but continuing to restrict class and collective action will do little to help women in low-and middle-wage jobs access justice when they face sexual harassment or assault. These women will still face challenges finding legal representation and find the cost of litigation prohibitive. And it will do nothing to help women facing other kinds of workplace violations. This is especially concerning considering the majority of low-wage workers in the United States are women. And research shows that low-wage workers in the United States lose more than $50 billion annually as a result of wage theft by their employers. Workers have the right to a workplace free of sexual harassment as well as their right to be paid fairly, and creating a hierarchy of worker protection laws by privileging certain types of claims over others is fundamentally unjust—particularly for low-wage workers. Companies should not be applauded for such a minimal response to workplace misconduct and advocates should not be fooled into seeing this as a solution.
Our nation’s labor and employment laws need reform. A key element of reform must be to end employers’ ability to require workers to sign away their rights as a condition of employment. The Supreme Court will soon decide National Labor Relations Board v. Murphy Oil USA, which will determine whether employers can lawfully require workers to sign arbitration agreements that include class and collective action waivers. If the Court denies workers this fundamental right, Congress must act to protect it. If policymakers leave the solution to corporations, we will end up with a system that privileges some claims and fails most workers.