Statement on SCOTUS' "Epic" Rollback of Employee Protections Against Abuse

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From: Equal Pay Today!, a Project of the Tides Center

Contact: press@equalpaytoday.org, 202-588-7616, www.equalpaytoday.org

Washington, DC -- Yesterday, in a 5-4 decision written by Justice Neil Gorsuch, the Court ruled in Epic Systems Corporation v. Lewis that employers can use individual mandatory arbitration agreements to bar employees from joining together under the National Labor Relations Act (NLRA) to challenge workplace violations through litigation or even arbitration. In a strongly worded dissent, Justice Ruth Bader Ginsburg underscored the gravity of this setback for employees:

"For workers striving to gain from their employers decent terms and conditions of employment, there is strength in numbers. A single employee, Congress understood, is disarmed in dealing with an employer. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 33–34 (1937).  The Court today subordinates employee protective labor legislation to the Arbitration Act.  In so doing, the Court forgets the labor market imbalance that gave rise to the NLGA and the NLRA, and ignores the destructive consequences of diminishing the right of employees “to band together in confronting an employer.” NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 835 (1984). Congressional correction of the Court’s elevation of the FAA over workers’ rights to act in concert is urgently in order."
"... The inevitable result of today’s decision will be the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers."
"... If employers can stave off collective employment litigation aimed at obtaining redress for wage and hours infractions, the enforcement gap is almost certain to widen. Expenses entailed in mounting individual claims will often far outweigh potential recoveries."
"... Fear of retaliation may also deter potential claimants from seeking redress alone."  

Equal Pay Today! – a non-partisan collaboration of organizations working to close the gender wage gap – stands with Justice Ginsburg, other workers' rights advocates, and the nation's employees in expressing extreme disappointment in the Court's decision.  Joi Chaney, Equal Pay Today's Executive Director/Campaign Director released the following statement: 

"One byproduct of the #metoo movement has been a renewed recognition that mandatory arbitration agreements can serve as a shield for employers who violate wage and hour laws and anti-employment discrimination laws, including laws that protect against sexual harassment and wage discrimination. Most employees don't even realize they are signing an agreement that will bar them from going to court; and even if they do, few understandably are willing to walk away from a job opportunity over it. For too long, employers have exploited this imbalance of power, especially in low-wage employment relationships. That said, the #metoo movement represented a culture shift and companies are now facing pressure to stop the mandatory nature of these agreements."
"Last week, Lyft and Uber pledged to end their use of mandatory arbitration agreements in cases of sexual harassment or assault. While inadequate in scope, these decisions were two steps forward in the right direction towards greater protections for employees, who should be free to mediate, arbitrate, or seek redress in court for workplace violations of any kind. It was our hope that other employers would follow suit."
"Yesterday, however, the Supreme Court took the nation three steps back by issuing a decision that will only renew the incentive for employers to use these unfair agreements and rob employees of their right to organize and file class claims. Without the threat of class actions, coupled with rollbacks to state and local labor law enforcement, employers are sent a message that they can get away with individual violations, especially against those most vulnerable, on the cheap."
"It is more important than ever that Congress stand with working Americans and reverse legislatively this decision. And, in the meantime, would-be "high road employers" should be strongly encouraged to curb the use of mandatory arbitration agreements. The nation is watching. Women are watching."