The beneficiary of the deciding Supreme Court seat that was held open for nearly a year in an unprecedented delay of “advice and consent” just cast the deciding vote and wrote the decision.
NEIL GORSUCH says that the 1925 Federal Arbitration Act (FAA) passed by a Republican government before the Great Depression overrides the 1935 National Labor Relations Act (NLRA) and its provision for employees to join together for “mutual aid.”
This means that employers can write provisions into contracts that require employees who have claims of illegal wage withholding can be denied their right to courts. They have to go to private arbitration.
And it gets worse.
Employees may also be blocked from joining together in arbitration. If an employer rips off a hundred employees a small amount of money, those people are no longer allowed to join together for an overall decision on similar wage claims. They must each go separately, pay their separate fee, perhaps hire their separate lawyer, etc.
IT’S EVERY WORKER FOR HIMSELF!
Ironically, the case was decided by joining together three employers to reach an overall decision on the claims of different employers.
You read that right. Employers joined together to get a joint decision that employees cannot join together when they are ripped off of wages — certainly not in courts but now also not even in private arbitration.
5-4 decision. All Republicans voted to cut off employee rights. All Democrats voted to maintain employee rights.
The Seventh Amendment reads:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law
But this guarantee of trial by jury is not even considered.
The U.S. Supreme Court on Monday dealt a blow to worker rights, saying that employers can bar their employees from banding together to challenge workplace abuses including wage theft and sexual harassment.
MSNBC host and legal analyst Ari Melber summed up the 5-4 decision (pdf) by tweeting: “Supreme Court rules that you have the right to your day in court, unless a corporation effectively makes you give up that right.”
Political activist Zephyr Teachout, meanwhile, said the decision “is terrible news for workers in America,” as it makes “it harder for employees to get a fair hearing when they are screwed.”
When employers mandate arbitration clauses, employees must act as individuals to challenge alleged workplace abuses, and are thus barred from gaining strength in numbers through class action suits to challenge corporate power. In the cases before the high court, employers had argued they had the right to impose such contracts under the Federal Arbitration Act, while employees argued they had the right to take collective action under the National Labor Relations Act (NLRA).
Celine McNicholas, director of labor law and policy at the Economic Policy Institute (EPI), responded by explaining the real and specific impact the court’s ruling will have on workers:
These agreements bar access to the courts for all types of employment-related claims, including those based on the Fair Labor Standards Act, Title VII of the Civil Rights Act, and the Family Medical Leave Act. This means that a worker who is not paid fairly, discriminated against, or sexually harassed, is forced into a process that overwhelmingly favors the employer—and forced to manage this process alone, even though these issues are rarely confined to one single worker.
Conservative Justice Neil Gorsuch wrote the majority opinion, finding that “Congress has instructed that arbitration agreements like those before us must be enforced as written.” According to Steve Vladeck, a CNN contributor and professor of law at the University of Texas School of Law, “Not only is [Gorsuch] endorsing the conservative justices’ controversial approach to arbitration clauses, but he’s taking it an important step further by extending that reasoning to employment agreements, as well.”
Justice Ruth Bader Ginsburg wrote the dissenting opinion, and read a summary of her dissent aloud—”something justices do only rarely to signify their objections,” USA Today reported.
Ginsburg called the decision “egregiously wrong,” and asserted: “Recognizing employees’ right to engage in collective employment litigation and shielding that right from employer blockage are firmly rooted in the NLRA’s design.”