People stand in line to go into the Supreme Court in Washington, Monday, Oct. 2, 2017, for the first day of the new term.
Like heat-seeking missiles, conservatives are looking to the Supreme Court to snuff out the few remaining sources for worker power. If their efforts succeed (and many high court observers believe that they will), there will be a further atomization of labor law: Workers who want to exercise their legal rights will be far more isolated and up against far more powerful employers.
On Monday, Supreme Court justices heard oral arguments for a consolidated group of cases, including National Labor Relations Board v. Murphy Oil, that will determine whether employers can prohibit their employees from joining collective class actions to settle workplace issues—like wage theft or discrimination—by including mandatory arbitration clauses in employment contracts.
As unions have precipitously declined over the past few decades, one of the most powerful tools left for workers to exercise collective power is by joining class-action lawsuits. However, a series of Supreme Court decisions stretching back to the early 1990s have made it easier for employers to funnel employee disputes into individual arbitration hearings. This practice amounts to a privatized court system that clearly favors employers.
“This is among the most profound shifts in our legal history," one federal judge told The New York Times, for its investigative series on mandatory arbitration. “Ominously, business has a good chance of opting out of the legal system altogether and misbehaving without reproach,” he added.
In an Economic Policy Institute report, Alexander J.S. Colvin explains that the share of employees subject to mandatory arbitration increased from just 2 percent in 1992 to more than a quarter of all workers by the early 2000s. Now, more than half of non-union private-sector employees are covered by such agreements. Of companies with more than 1,000 employees, 65 percent of workers are covered by mandatory arbitration. Of all private-sector arbitration clauses, 30 percent—covering about 25 million workers—explicitly state that employees must waive their right to join a class-action case.
The question before the Supreme Court is whether mandatory arbitration unlawfully diminishes workers’ ability to act together as a united group on an issue. Arguing on behalf of workers, National Labor Relations Board General Counsel Richard Griffin, an appointee of President Obama, says that employers who require an employee to waive his or her right to join a class-action lawsuit violate the National Labor Relations Act, which protects workers’ ability to act together in what is known as “concerted activity,” such as joining a union.
In an unusual twist, the Trump administration flipped Obama’s position on the issue, instead supporting corporations’ contention that the Federal Arbitration Act requires courts to view arbitration clauses like any other contract.
Monday’s arguments showed that employers have the upper hand with the conservative majority on the bench. According to news reports, the justices appeared to break on the matter along ideological grounds. In his questioning, Justice Anthony Kennedy, who is often the swing vote on close cases, appeared to support the employers’ argument and insisted that class actions are not the only way for workers to use the legal system to resolve their grievances. State attorneys general, he said, can also take up cases on behalf of workers.
Justice Stephen Breyer was wary of the impact of such a drastic shift in precedent. “I’m worried … what you are saying is overturning labor law that goes back to … FDR at least—the entire heart of the New Deal,” he told the employers’ lawyers.
If the Supreme Court rules to give employers the broad authority to prohibit employees from joining class actions and, instead, channel all workplace disputes into what is effectively private mandatory arbitration, it could very well eliminate one of the few remaining fragments of collective power available to workers.
Meanwhile, just last week, the Supreme Court announced that it will hear a case that could strike a deadly blow to the other main vehicle for worker power: unions. While private-sector unions have declined to the point of near-extinction thanks to the passage of state right-to-work laws and aggressive union-busting tactics, public-sector unions have remained comparatively strong: Nearly 35 percent of all public-sector workers are unionized.
In the coming months, the Court will hear Janus v. AFSCME, a case that will determine whether public-sector unions can require workers who opt out of membership but are still covered by a collective-bargaining agreement to pay “fair share” fees. The Court was on the verge of ruling against public-sector unions on the same question with Friedrichs v. California Teachers Association back in 2015 until Justice Antonin Scalia’s death stalled that effort.
With Justice Neil Gorsuch taking his place, it’s widely expected that a majority will vote to do away with fair-share fees. This would be a devastating blow to public-sector unions like AFSCME, the American Federation of Teachers, National Education Association, and SEIU, which are the strongest pillars of the organized labor movement. Conservative groups have long sought to use such a case to cut the legs out from under public-sector unions.
If the courts weaken the power of class-action lawsuits and public-sector unions, the most important tools for exercising worker power will be completely undermined. Of course, for the business lobby, that’s the whole point. Having a conservative majority on the bench for cases like Murphy Oil and Janus is precisely the reason why the Republican Party and its benefactors continue to put up with the reckless authoritarian antics of President Trump.