May 21, 2018
Contact: Terry O'Neill, Executive Director
(415) 296-7629

U.S. Supreme Court Deals Major Blow To Employees’ Basic Rights

Statement of Terry O’Neill, Executive Director of the National Employment Lawyers Association

OAKLAND, Calif., May 21, 2018 – The National Employment Lawyers Association (NELA) is appalled by the U.S. Supreme Court’s ruling in Epic Systems Corp. v. Lewis, Ernst & Young, LLP v. Morris, and National Labor Relations Board v. Murphy Oil, USA (“Murphy Oil”), allowing employers to sidestep federal labor laws intended to guarantee workers’ rights. As Justice Ruth Bader Ginsburg aptly put it in her dissent from the majority opinion, the decision in this case is “egregiously wrong.”

Nearly 100 years ago, workers fought and died for the right to act collectively to resolve grievances and improve working conditions. Today, as more comes out about the systemic abuses—including harassment, discrimination, wage theft, and others—that pervade America’s workplaces, courts should expand employees’ ability to challenge unlawful practices, not suppress them as a bare majority of the Supreme Court has done.

The employers in the Murphy Oil trio of cases stood accused of illegally withholding overtime pay or other compensation, in violation of wage and hour laws. In each case, after the workers banded together and sued in federal court, as they are entitled to do under federal labor laws, the employers used the fine print in their employment contracts to force each worker to go it alone in separate arbitration proceedings.

NELA and other workers’ rights advocates argued forcefully against the anti-worker policies, asserting in an amicus brief that they “deprive workers of their core statutory right to be free from employer interference, restraint, and coercion when engaged in concerted activity for mutual aid or protection.”

Individual forced arbitration is no substitute for a collective action in an open, public judicial forum. Unlike courts of law, arbitrators are incentivized, and significantly more likely, to rule in employers’ favor. A recently-updated report from The NELA Institute found that 80 percent of America’s top companies already have arbitration policies in their employment contracts, nearly half of which also ban workers from participating in class, collective, or joint legal actions. After today’s misguided ruling, even more employers will be emboldened to follow suit.

With the Supreme Court turning its back on workers, Congress must act. NELA calls for immediate passage of the Arbitration Fairness Act (H.R.1374, S.537), which would stop employers’ abusive practice of forced arbitration and class waivers.

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The National Employment Lawyers Association (NELA) advances employee rights and serves lawyers who advocate for equality and justice in the American workplace. NELA provides assistance and support to lawyers in protecting the rights of employees against the greater resources of their employers and the defense bar. It is the country’s largest professional organization exclusively comprised of lawyers who represent individual employees in cases involving employment discrimination and other employment-related matters. NELA and its 69 circuit, state, and local Affiliates have more than 4,000 members around the country.