Epic Backslide: The Supreme Court Endorses Mandatory Individual Arbitration Agreements—#TimesUp on Workers’ Rights

Details

Author(s):
  • Stephanie Greene
  • Christine Neylon O'Brien
Publish Date:
February, 2019
Publication Title:
Stanford Journal of Civil Rights & Civil Liberties
Publisher:
Stanford University
Place of Publication:
Stanford, California
Format:
Journal Article Volume XV Issue 1
Citation(s):
  • Stephanie Green & Christine Neylon O'Brien, Epic Backslide: The Supreme Court Endorses Mandatory Individual Arbitration Agreements—#TimesUp on Workers' Rights, 15 J. C.R. & C.L. 43 (2019).
Related Organization(s):

Abstract

The United States Supreme Court dealt a serious blow to workers’ rights in Epic Systems Corp. v. Lewis, 584 U.S. __ (May 21, 2018) when it held that employers may require employees to waive their rights to class or collective action. Employees had hoped the Court would find that mandatory individual arbitration provisions are illegal because Section 7 of the National Labor Relations Act guarantees employees the right to engage in concerted activities for mutual aid or protection. The Court, however, held that the Federal Arbitration Act requires arbitration provisions to be enforced as written. While the three cases before the Court involved wage and hour claims, the Court’s Epic decision impacts many other types of employment disputes that are diverted from courts to individual arbitration – including workplace discrimination and sexual harassment, as well as in consumer agreements. In the #MeToo era, employers may consider exempting sexual harassment claims from mandatory arbitration agreements and thereby allowing claimants their full statutory rights. Employer-mandated arbitration provisions cover 60 million U.S. workers, and those requiring class waiver in arbitration keep labor and employment claims hidden, and foreclose full vindication of employees’ rights with appropriate remedies. This research paper discusses the Court’s decision in Epic Systems, what workers’ rights remain after the decision, and what steps employee advocates and Congress might take to remedy the negative impact of the Court’s decision on workers’ rights to act collectively.