Last week SCOTUS determined on a 5 – 4 vote that employers had the right to uphold arbitration agreements to prevent employees from coming together for expensive class-action lawsuits (Epic Systems Corp. v. Lewis). The opinion, written by new Justice Neil Gorsuch, states “Congress has instructed in the Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced, and neither the Arbitration Act’s saving clause nor the NLRA suggests otherwise”. Here’s an interesting article that describes Gorsuch’s testimony about arbitration during his confirmation hearing – https://theatln.tc/2skqK3j.
Just three days after the Epic decision, a Michigan Federal Trial Court ruled that all but two defendants in a class-action suit for race discrimination against Fiat Chrysler were required to enter arbitration – Williams v. FCA US LLC, No. 17-10097 (E.D. Mich., May 24, 2018). The two defendants allowed to proceed were able to do so only because they had been hired prior to the company implementing mandatory arbitration.
Obviously, employers are pleased with the Epic decision while critics opine that this is a step backwards for ending discrimination and sexual harassment. Also, just today, Harvey Weinstein was indicted by a New York Grand Jury which is sure to fan the flames on the #MeToo movement. There has already been bi-partisan legislation – Ending Forced Arbitration of Sexual Harassment Act of 2017 (http://bit.ly/2J0SVhZ) – which would void forced arbitration agreements that prevent sexual harassment survivors from reporting inappropriate conduct.
A vexing issue that has taken many turns and has become highly politicized. It will be interesting to see what the next chapter will be – the Epic decision will stand until if and when Congress takes action to change the law. But will they? What are your thoughts? Please join the conversation on the Employment Law Forum group (http://bit.ly/LHRLaw).
Linked:HR Community Chair