We are at a crossroads that will determine how workers across the country can protect their own rights as the defense bar feverishly works to erect barricades at the few remaining legal avenues workers have left to resolve workplace disputes.
With the enthusiastic support of the United States Supreme Court, large employers have overwhelmingly demanded that their workers submit their workplace disputes to binding arbitration. and forbids them to pursue their claims together. But after many workers filed similar claims in arbitration – rather than dropping them as employers might expect – employers are now being urged to make arbitration more difficult and costly for workers.
There is a legislative solution that would level the playing field in arbitration: the Right to Organize Protection (PRO) Act 2021 (HR 842), the union-backed bill that would protect the capacity of workers workers to bring a class action lawsuit. The House passed the bill in March and it is now before a Democratic-controlled Senate for the first time and is gaining public support.
U.S. Supreme Court poses obstacles
Both the Civil Rights Act of 1964 and the Fair Labor Standards Act provide a forum for employees in federal court to challenge discrimination and wage theft, but the Supreme Court has repeatedly granted bar demands. , applying arbitration agreements which exclude disputes before which prohibit workers from asserting their rights collectively.
For example, in Epic Systems Corp. vs. Lewis, the Supreme Court ruled he did not violate the national labor relations law – a law protecting workers’ ability to organize – which employers require employees to give up their right to sue collective or collective proceedings in arbitration.
The Supreme Court went even further in Lamps Plus Inc. c. Varela, ruling that an employer could not be compelled to arbitrate employee claims on a collective basis when the arbitration agreement was ambiguous as to whether collective arbitration was permitted.
The PRO Law would statutorily overturn these decisions.
Despite these obstacles, workers successfully pursued individual claims in arbitration, sometimes in large numbers and challenging the same illegal conduct by the same companies, even when it might have been more effective to bring class actions in the courts.
Employers try to restrict workers’ rights
Overwhelmed by the costs associated with these cases, which the defense calls “mass arbitrations,” employers now balk at the very arbitration procedures they imposed on these workers in the first place.
After DoorDash recently failed to pay the required arbitration fees on time, Northern California District Judge William Alsup forced the company to pay its fees and arbitrate 5,010 delivery driver cases. Alsup said, “Ironically on irony, DoorDash now wants to resort to a class-wide lawsuit, the very device it has denied workers, to evade its duty of arbitration. This hypocrisy will not be blessed.
Today, large companies representing employers have come forward with proposals that would further reduce the ability of workers to assert their rights. After years of advocating on behalf of their corporate clients to prevent workers from taking cases to court and pursuing class actions anywhere, these companies are looking to make alternative arbitration proceedings, such as the arbitration, prohibitive for individual workers.
Some measures, such as requiring employees to file a notice with the company or engage in alternative dispute resolution prior to filing, are spurious. When the employer does not intend to negotiate such claims before they are filed, the provisions simply act as another obstacle to bringing a case.
Other proposals can undermine the very system that employers have promoted. The cost-sharing and cost-shifting provisions may not be enforceable at all because the alleged arbitration procedural provisions are not valid when they have the effect of waiving substantive rights.
Recognizing that forcing workers to pursue their claims in arbitration might not have the intended effect of minimizing the number of workers whose claims are pursued, the defense bar is also proposing measures that cannot be qualified, to use the term Judge Alsup, that of “hypocrisy”.
For example, he suggests that arbitration agreements include a provision, at the employer’s option, that employers can settle as an accredited class with the individual worker claiming their agreement to be pursued separately. Likewise, employers are advised to develop procedures to arbitrate multiple claims in batches, allocated to a single arbitrator, and with a single remuneration for the employer.
Yet there is already an efficient way to settle multiple cases: class actions. Where claims are similar enough to warrant their collective arbitration, employers should allow such claims to be dealt with in a certified class action suit first, and not as a last resort when the employer has exhausted all other means of reaching a resolution. overall favorable to the employer.
Since the passage of the Civil Rights Act of 1964 over 50 years ago, workers’ access to courts – and increasingly to arbitration forums – has eroded. Substantive rights only apply to the procedures available to enforce them.
The PRO Act offers some hope that Congress will come to the rescue and enshrine protections for workers to organize and assert their rights as a group. In the meantime, we must look with skepticism at the new defense proposals and fight against those unenforceable provisions which forgo long-standing substantive rights to challenge discrimination and wage theft.
This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.
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Stacy N. Cammarano is a partner in the Civil Rights and Employment practice group at Cohen Milstein Sellers & Toll PLLC.
Joseph M. Sellers is a partner at Cohen Milstein Sellers & Toll PLLC and chair of the Civil Rights and Employment practice group.
The authors represent workers who challenge discrimination, wage theft and other illegal employment practices – individually and through class actions – in arbitration and in court.