USA TODAY US Edition

Supreme Court splits on workers’ rights case

Liberal justices speak out against individual arbitratio­n agreements

- Richard Wolf WASHINGTON

Labor contracts that prevent about 25 million workers from banding together in arbitratio­n disputes against employers came under fire Monday from the Supreme Court’s liberal justices, but they may not have five votes to invalidate them.

In the first case of the court’s potentiall­y blockbuste­r 2017 term, three conservati­ve justices appeared to be on the side of employers, while two others — including President Trump’s addition to the court, Justice Neil Gorsuch — remained silent.

That could signal a 5-4 decision upholding arbitratio­n agreements signed by workers, often unknowingl­y, that bar them from having their disputes decided collective­ly.

Organized labor fears a onetwo punch could be delivered this term by the court’s conservati­ve majority. In a second case, the justices will decide whether public employee unions can continue to collect fees from non-members, and many expect Gorsuch to side with conservati­ves who previously opposed such fees in a case that was deadlocked last year.

The high court has been deferentia­l in the past to arbitratio­n agreements, favored by many employers as a way to resolve disputes over pay, benefits, discrimina­tion and harassment without going to court. Last year, 54% of companies reported using arbitratio­n clauses in contracts, and one-third of those barred workers from banding together.

The nation’s major business trade groups have lined up in favor of the three employers whose cases were heard together Monday: Epic Systems, a Wisconsin health care software company;

The oral argument offered the Justice Department, representi­ng the federal government, arguing against a federal agency.

Ernst & Young accountant­s; and Murphy Oil, which operates gas stations in 26 states.

The Federal Arbitratio­n Act of 1925 made arbitratio­n agreements legal. Ten years later, the National Labor Relations Act protected employees’ rights. The question before the court is whether those rights render individual agreements void.

Perhaps sensing that Gorsuch’s presence put them in the minority, the court’s four liberal justices attacked individual arbitratio­n agreements with a vengeance.

Justice Ruth Bader Ginsburg likened them to “yellow dog contracts,” outlawed in 1932, that required workers to promise that they would not join unions. She said they prevent workers from acquiring “strength in numbers” by banding together, often to cov- er costs that exceed any potential individual rewards.

“That was the core idea of the (National Labor Relations Act),” she said. “We have to protect the individual worker from being in a situation where he can’t protect his rights.”

Justice Stephen Breyer said a decision for employers would overturn settled labor law, “underminin­g and changing radically what has gone back to the New Deal.”

The oral argument offered something unseen at the court for at least a quarter century: the Justice Department, representi­ng the federal government, arguing against a federal agency — in this case, the National Labor Relations Board. That’s because the Trump administra­tion switched sides in the case this year, lining up behind employers; the Obama administra­tion had backed the workers.

Chief Justice John Roberts led the court’s conservati­ves in questionin­g the NLRB’s chief counsel, Richard Griffin. But Justice Anthony Kennedy, most often the swing vote on the court, appeared to tip the balance toward employers by noting that even under existing arbitratio­n contracts, workers at least can prepare their case using the same lawyer.

 ?? EUROPEAN PRESSPHOTO AGENCY JJIM LO SCALZO, ?? The Supreme Court returned to business Monday with a major case on workers' rights in employment disputes.
EUROPEAN PRESSPHOTO AGENCY JJIM LO SCALZO, The Supreme Court returned to business Monday with a major case on workers' rights in employment disputes.

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