Epic Backslide: The Supreme Court Endorses Mandatory Individual Arbitration Agreements, #Timesup on Workers' Rights

42 Pages Posted:  

Stephanie M. Greene

Boston College - Carroll School of Management

Christine Neylon O'Brien

Boston College - Carroll School of Management ; Boston College - Carroll School of Management

Date Written: August 28, 2018

Abstract

The United States Supreme Court dealt a serious blow to workers’ rights in Epic Systems Corp. v. Lewis, 584 U.S. __ (May 21, 2018) when it held that employers may require employees to waive their rights to class or collective action. Employees had hoped the Court would find that mandatory individual arbitration provisions are illegal because Section 7 of the National Labor Relations Act guarantees employees the right to engage in concerted activities for mutual aid or protection. The Court, however, held that the Federal Arbitration Act requires arbitration provisions to be enforced as written. While the three cases before the Court involved wage and hour claims, the Court’s Epic decision impacts many other types of employment disputes that are diverted from courts to individual arbitration – including workplace discrimination and sexual harassment, as well as in consumer agreements. In the #MeToo era, employers may consider exempting sexual harassment claims from mandatory arbitration agreements and thereby allowing claimants their full statutory rights. Employer-mandated arbitration provisions cover 60 million U.S. workers, and those requiring class waiver in arbitration keep labor and employment claims hidden, and foreclose full vindication of employees' rights with appropriate remedies. This research paper discusses the Court’s decision in Epic Systems, what workers' rights remain after the decision, and what steps employee advocates and Congress might take to remedy the negative impact of the Court’s decision on workers’ rights to act collectively.

Keywords: Epic Systems, Mandatory Individual Arbitration, #TimesUp, #MeToo, National Labor Relations Act, National Labor Relations Board, Murphy Oil, Ernst & Young, Federal Arbitration Act, Circuit Split, Supreme Court, Protected Concerted Activities, Mutual Aid or Protection, Class Collective Action Waiver

JEL Classification: [J00, J30, J38, J41, J52, J7, J70, J71, J78, J80, J81, J83, J88, K23, 31, 42]

Suggested Citation

Greene, Stephanie M. and O'Brien, Christine Neylon, Epic Backslide: The Supreme Court Endorses Mandatory Individual Arbitration Agreements, #Timesup on Workers' Rights (August 28, 2018). Stanford Journal of Civil Rights and Civil Liberties, Forthcoming (Forthcoming Fall 2018). Available at SSRN: https://ssrn.com/abstract=3240096

Stephanie M. Greene

Boston College - Carroll School of Management ( email )

140 Commonwealth Avenue
Chestnut Hill, MA 02467
United States

Christine Neylon O'Brien (Contact Author)

Boston College - Carroll School of Management ( email )

140 Commonwealth Avenue
Business Law Department
Chestnut Hill, MA 02467
United States
(617) 552-0413 (Phone)
(617) 552-0414 (Fax)

Boston College - Carroll School of Management ( email )

140 Commonwealth Avenue
Business Law Department
Chestnut Hill, MA 02467
United States
(617) 552-0413 (Phone)
(617) 552-0414 (Fax)

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