The Supreme Court is poised to take on workplace law and could change the way disputes are handled forever. Congress passed the Federal Arbitration Act in 1925 in order to keep many of these disputes out of the courts. Instead, so-called fair arbitrators were used instead. Many corporations use this practice even today to their advantage in order to win. After all, the arbitration process is final, and both parties usually sign a document agreeing that the arbitrator has the final say.
Conservatives are usually in favor of arbitration. When Neil Gorsuch went through his nomination hearing, he was asked about his thoughts on the arbitration process and how it can be used to cut through important employment law. He said simply that the process of arbitration was “quicker, cheaper, easier.” It’s certainly not cheaper for the little guy, who stands to get walked over.
The 1925 law has expanded in the many decades since in order to stem the tide of lawsuits even more. Small business owners and other consumers are now often subject to arbitration as well. Yet another expansion seems about to take place, and it could destroy the ability of employees to fight immoral and unethical practices conducted by their corporate employers.
Janus v. American Federation of State, County, and Municipal Employees could be a blow to unions. Epic Systems Corp. v. Lewis, on the other hand, could deal a blow to any employee who works for a wage. The latter case will determine whether an employer can force its employees to submit to individual arbitration when filing a workplace dispute. If the Supreme Court says yes, then the ruling would effectively bar employees from filing class action lawsuits as a condition of employment. Once again, the court system would have to hear fewer cases while employees’ protections are slashed.
As it stands right now, employees can opt out of arbitration so long as they haven’t already agreed to it. Once the contract is signed and sealed, there’s no going back.
That’s not to say that mandatory arbitration clauses aren’t already common. According to the Economic Policy Institute, there are at least 60 million workers in the U.S. who are subject to mandatory arbitration clauses as a condition of employment. Epic Systems Corp. v. Lewis will determine whether or not these mandatory clauses are legal once and for all. So far, it looks like the Supreme Court will say yes.