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Ironic that this combined Supreme Court case restricts rights of workers to join in class action
suits to fight for their rights.
Justice Ruth Bader Ginsburg is absolutely correct in noting this decision is “egregiously wrong.”
Supreme Court Deals Blow to Workers’ Rights in 5-4 Decision Against Collective Action
https://www.democracynow.org/2018/5/23/supreme_court_deals_blow_to_workers
In a major blow to workers’ rights, the Supreme Court ruled 5 to 4 Monday that employers can use arbitration clauses to prohibit workers from banding together to challenge violations of federal labor laws in class-action lawsuits. Arbitration is often confidential. Many workers may agree to mandatory arbitration clauses without even being aware of it when they sign a contract with their employer. In a rare show of public displeasure, Justice Ruth Bader Ginsburg read her dissent from the bench, calling the majority opinion “egregiously wrong” and saying, “The court today holds enforceable these arm-twisted, take-it-or-leave-it contracts—including the provisions requiring employees to litigate wage and hours claims only one-by-one. Federal labor law does not countenance such isolation of employees.” For more, we speak with Terri Gerstein, former labor bureau chief for the New York State Attorney General’s Office.
~~~
TERRI GERSTEIN: Well, the real significance of this case, I think, is that many, many workers—most workers—especially low-wage workers, will simply not be able to get justice when they experience wage theft or race discrimination, sexual harassment. The decision, as you said, decides that employers are allowed to force workers, through arbitration agreements, to give up their rights to bring a class action. And that is such a problem, first of all, because workers always get strength in bringing cases together. This is both because they’re afraid to bring cases often, because of retaliation, but if it’s a group, it gives more protection from retaliation.
It’s also true because of the economics of bringing a case. If you think about how much a minimum-wage case might be worth—the federal minimum wage is $7.25, even the places where the minimum wage is $15 an hour—if a worker is not paid a hundred hours, that doesn’t add up to very much money. And it still takes a lot of work for a lawyer to do these cases. So the only way the economics of these cases work for private lawyers to bring cases is to aggregate them into a class action. And it will be—now that workers—employers are free to require workers to give up their right to bring a class action, I think it will be extremely hard for workers to find lawyers who can afford to take these cases.
~~~
TERRI GERSTEIN: Right. It’s really interesting, when you look at the actual underlying cases, because these were actually three cases that were combined. In one of them, the arbitration agreement was actually part of the job application itself, so you couldn’t even apply for the job without agreeing to arbitration. In another couple of the cases, workers who were already working at that company suddenly got an email saying, “Here’s your new arbitration agreement. By continuing to work here, you are agreeing to this agreement.” So, and as you said, for a lot of people, it’s just in the very beginning, when you get a mountain of paperwork or, in some places, touchscreens, and you just sign everything. People don’t have the opportunity to really review it, to understand what they’re giving up. And they’re not really getting anything in exchange for signing this arbitration agreement and giving up their right to bring a class action. All they get is the right to have the job.
~~~
TERRI GERSTEIN: Well, the real significance of this case, I think, is that many, many workers—most workers—especially low-wage workers, will simply not be able to get justice when they experience wage theft or race discrimination, sexual harassment. The decision, as you said, decides that employers are allowed to force workers, through arbitration agreements, to give up their rights to bring a class action. And that is such a problem, first of all, because workers always get strength in bringing cases together. This is both because they’re afraid to bring cases often, because of retaliation, but if it’s a group, it gives more protection from retaliation.
It’s also true because of the economics of bringing a case. If you think about how much a minimum-wage case might be worth—the federal minimum wage is $7.25, even the places where the minimum wage is $15 an hour—if a worker is not paid a hundred hours, that doesn’t add up to very much money. And it still takes a lot of work for a lawyer to do these cases. So the only way the economics of these cases work for private lawyers to bring cases is to aggregate them into a class action. And it will be—now that workers—employers are free to require workers to give up their right to bring a class action, I think it will be extremely hard for workers to find lawyers who can afford to take these cases.
~~~
TERRI GERSTEIN: Right. It’s really interesting, when you look at the actual underlying cases, because these were actually three cases that were combined. In one of them, the arbitration agreement was actually part of the job application itself, so you couldn’t even apply for the job without agreeing to arbitration. In another couple of the cases, workers who were already working at that company suddenly got an email saying, “Here’s your new arbitration agreement. By continuing to work here, you are agreeing to this agreement.” So, and as you said, for a lot of people, it’s just in the very beginning, when you get a mountain of paperwork or, in some places, touchscreens, and you just sign everything. People don’t have the opportunity to really review it, to understand what they’re giving up. And they’re not really getting anything in exchange for signing this arbitration agreement and giving up their right to bring a class action. All they get is the right to have the job.