Justice on the job
ASupreme Court term set to settle huge questions on gay rights, political gerrymandering and public employee union power begins Monday with oral arguments on whether companies can systematically force workers to pursue wage and job discrimination claims out of court, in individual arbitration.
Justices should rule for employees, whose vital right to seek workplace justice is effectively nullified when their employers can deny them the ability to band together.
The case is three disputes rolled into one. All involve workers whose class-action suits or other collective action was short-circuited by companies — a gas station operator, a software firm and an accounting partnership — because of clauses requiring them to settle claims in a one-on-one, binding, nonjudicial settlement process.
The employees went to the federal National Labor Relations Board, which, in 2012, handed them a victory, invalidating the individual arbitration clauses.
The employers fought back in court, winning some and losing some — sending the issue, ultimately, to the Supremes.
Federal law doesn’t on its face provide an easy answer. The nearly century-old Federal Arbitration Act calls arbitration agreements “valid, irrevocable and enforceable.” But the National Labor Relations Act, a more sweeping statute, safeguards employees’ freedom to engage in “concerted activities” for “mutual aid or protection.”
The higher right — of employees to join forces to seek redress — must prevail, because when workers are forced to resolve claims one at a time, they are essentially denied the ability to even try to get what they are owed.
It’s basic economics. If one waitress or home health aide is being cheated of her wages, the claim might only be worth a few thousand dollars — and not worth a lawyer’s time.
But if a worker finds five, 10 or 100 people in a similar situation being treated the same way — yielding the possibility of a larger monetary judgment — the combined claim is far likelier to find representation.
Little wonder the vast majority of wage-andhour settlements come when workers come together and demand fair treatment under the law.
In its 2012 ruling, the NLRB, importantly, allowed employers to stave off lawsuits by demanding collective arbitration. It simply said forcing employees to go it entirely alone was verboten.
That’s a smart balance that the Obama administration’s Justice Department was properly seeking to defend. This year, the Trump administration abandoned the NLRB and employees to side with employers.
They’re wrong. The workers are right. The high court must so rule.