North Carolina state government joined several other states last week in throwing its weight behind an important effort to defend basic protections for working people.
The right of workers to join together to enforce workplace laws is the cornerstone of national labor policy. Federal law gives employees the right to engage in “concerted” – or group – activities for their “mutual aid or protection” and prohibits employers from interfering with this right. Unfortunately, this cornerstone is under attack.
There is a growing trend among employers of requiring employees to waive this right by forcing them to agree to arbitrate any workplace disputes as a condition of employment. These mandatory arbitration clauses bar employees from bringing their wage and hour, discrimination, and other employment claims as class or collective actions or from obtaining relief on behalf of a group of workers. Instead, employees must pursue their claims in closed-door individual arbitrations—an expensive process that has been shown to favor corporations over individuals. In a trio of cases which have been consolidated together, the U.S. Supreme Court is going to weigh in on whether this practice is legal.
Last week, Attorney General Stein joined an amicus brief submitted by attorneys general from fourteen other states and the District of Columbia which asks the Supreme Court to protect the rights of employees to join together and have their day in court. In addition to emphasizing the importance of the right to concerted activity for workers, the brief points out that if the Supreme Court finds in favor of employers instead it will likely lead to under-enforcement of employment laws which are intended to be enforced primarily by employees.
“[I]f employees must bring all of their claims individually, most workers will not bring claims at all because (a) workers often fear that filing claims individually, rather than collectively, will make them the target of reprisal by employers; (b) in the absence of a collective suit, workers may not even know that their rights have been violated; (c) an individual employee’s claim is likely to be small, deterring him from filing a claims; and (d) employees often cannot prove pattern-and-practice [discrimination] claims without participation from their peers. “
A broad coalition of civil rights groups and international labor unions representing 13.5 million workers have also submitted amicus briefs (here and here) on the side of the employees – urging the Supreme Court to ban employers from using forced arbitration to undermine the ability of employees to hold employers accountable and evade their responsibilities to comply with federal and state laws.
Meanwhile, the Trump Justice Department recently submitted its own brief in support of the corporate employers, an unprecedented reversal of the Justice Department’s position up until that point. Stay tuned to see if the Supreme Court respects our country’s long history of allowing workers to join together for mutual protection or sides with the corporations that are trying to eliminate that right.