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Podcast: Supreme Court Weighs Crucial Mandatory Arbitration Dispute

This podcast features a look inside the Supreme Court with on-the-scene coverage of a major employment arbitration dispute affecting an estimated 25 million workers and their employment contracts. The Court is being asked to decide whether an employer may compel its employees to arbitrate complaints individually rather than as part of a class.

While the justices have previously upheld the use of mandatory arbitration agreements, lawyers for the employees claim this case is different because these agreements all essentially waived the employees' rights to engage in protected, concerted activity about their workplace conditions under the National Labor Relations Act.

Supreme Court Weighs Crucial Mandatory Arbitration Dispute

October 24, 2017

During the oral arguments, Justice Stephen Breyer clearly agreed, saying he feared that upholding these agreements would overturn decades of labor law going back to the New Deal. Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor all voiced similar concerns.

But perhaps somewhat tellingly, the Supreme Court's frequent swing voter, Justice Anthony Kennedy, wondered why these workers could not proceed collectively and share information by going to the same lawyer, even if they had to move forward individually in arbitration. The HR Policy Association and US Chamber of Commerce filed briefs urging the Court to uphold the arbitration agreements.

A decision in these combined cases of Epic Systems Corporation v. Lewis, Ernst & Young v. Morris and NLRB v. Murphy Oil is expected before the end of the Court's term in June 2018.

Additional Resources

Supreme Court Delays Major Employment Arbitration Class Action

9th Circuit Becomes Second Appeals Court to Rule That Class Action Waivers Violate NLRA

Class Action Waivers in Arbitration Agreements Violate NLRA, 7th Circuit Rules

Transcript