As we all know, federal, state and local laws grant employees many workplace protections that are
enforceable in court of law, often by way of a jury trial.
Non-union employers have, however, increasingly made mandatory arbitration a condition of employment.
These clauses limit most employment related claims to a private arbitration process and require that
employees waive their right to bring those claims in court.
More recently – and this gets to the heart of our discussion issue – non-union employers added collective
action waivers to these mandatory arbitration clauses. In other words, these employers impose two
conditions of employment: (1) employees are limited to the employer’s selected private arbitration process
and (2) employees are prohibited from collectively pursuing or combining their employment related
claims, even in arbitration. This second feature requires that employees pursue their employment-related
claims one by one, on an individualized basis. Even where they are based on common facts and laws, the
claims must be brought separately and cannot be jointly or collectively pursued.
In D. R. Horton, Inc., 357 NLRB 2277 (2012) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014) the
National Labor Relations Board ruled that these mandatory class action waivers violate Section 7 because
they unlawfully bar employees from engaging in protected concerted activity When appellate courts split
on that issue, the Supreme Court accepted it for review and on May 21,
2018 issued a split 5:4 decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612; 200 L. Ed. 2d 889 (2018.)
The Lesson 6 forum article that I’d like you to read is “Supreme Court Says Employers Can Bar Worker
Class
Actions” by Greg Stohr which you can find at
https://www.insurancejournal.com/news/national/2018/05/21/489949.htm
(Links to an external site.)
The Lesson 6 forum case that I’d like you to read is Epic Systems Corp. v. Lewis, 138 S. Ct. 1612; 200 L.
Ed.
2d 889 (2018.) You can access the case at https://caselaw.findlaw.com/us-supreme-court/16-285.html
(Links to an external site.)
Please note that the Epic case starts with an introductory “Syllabus”, which is a summary of the case.
After the
Syllabus you’ll get to recently appointed Justice Neil M. Gorsuch’s majority opinion (which Justices
Roberts,
Kennedy, Thomas, and Alito joined and with which Justice Clarence Thomas concurred); and, finally,
you’ll see
Justice Ruth Bader Ginsburg’s dissenting opinion on behalf of herself and Justices Breyer, Sotomayor,
andMKagan.
The Initial Questions For Discussion
After reading the article and case described above please respond to and discuss the following initial
questions:
- What was the central issue in the case according to Justice Gorsuch, who wrote the majority opinion?
- Does Justice Bader Ginsburg, who wrote the dissenting opinion, frame the central issue in the same
way? IfMnot, explain how the two versions of the issue differ and how that difference might impact the
NLRA analysis.
- What was the majority ruling with respect to the NLRA issues (mainly discussed in Sections III and IV of
the Gorsuch opinion) and what was its rationale?
- How would the dissenting justices have ruled on the NLRA issues and what was their rationale?
- In light of our course reading, do you agree with the majority or the dissenting justices with respect to
theMNLRA issues? Explain your reasoning.
- What aspects of the case or the issues did you find most interesting or surprising? Explain why.