Here's What the Supreme Court Will Focus on Next in Labor Law: Arbitration

Organized labor might be about to take another hit.

Recently the Supreme Court announced its decision to take up the issue of class action waivers in employment contracts. This has traveled up through the federal courts over the past four years resulting in a circuit split and three cases which the Court consolidated for the purposes of appeal: Lewis v. Epic Systems Corp., Morris v. Ernst & Young and Murphy Oil USA Inc. v. NLRB. (Hereinafter "The Lewis cases" for ease of use.)

All three cases raise the same question: can an employer include class action waiver and binding arbitration clauses in its terms of employment. If so then major lawsuits like Young v. UPS and Turner v. Chipotle may go the way of the dodo, replaced by individually negotiated settlements between employer and employee.

In brief, the National Labor Relations Board has argued that these waivers violate the National Labor Relations Act by substantively interfering with employees' right to organize. Under this theory, banding together for a consolidated lawsuit constitutes collective activity, which is protected by the NLRA.

These, and many other, employers argue that this is a perfectly legitimate clause, because it only addresses a procedural issue. Under this theory each employee is still free to bring suit; a person simply have to do so individually instead of in bulk.

Now let's dive into it.

The issue: This is a case about whether class action lawsuits are a procedural trick or a substantive right.

Sharp eyed readers will recognize this as the spiritual successor to AT&T Mobility, LLC vs. Concepcion.

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