Sun setting on workers’ day in court?

Bill Knight column for Thursday, Friday or Saturday, Sept. 14, 15 or 16

U.S. workers may take for granted that they could always have their “day in court,” but the sun may set for that right in a looming U.S. Supreme Court decision that seems like something out of George Orwell’s “Animal Farm.”

Even if workers at the same company are dealing with the same issue, individual employees could face a future of hiring their own lawyers and arguing their cases out of court, with employers and their arbitrators acting as judges if the Court rules that labor law is overruled by other statutes.

Some laws are “more equal” than others, the Court may decide.

Last month, attorneys from the National Labor Relations Board (NLRB) filed a brief in “NLRB v. Murphy Oil,” which is scheduled to be heard at the Supreme Court next month, when it will determine if forced arbitration agreements with individual workers prevail in work-related claims. That was previously prohibited by the National Labor Relations Act, which guarantees workers the right to stand together for “mutual aid and protection” when seeking to improve their wages and working conditions.

Employer interference with the right to collective action is still technically forbidden, but corporations’ increasing use of mandatory arbitration agreements for everything from internet service to consumer goods if applied to the workplace could compel workers to surrender their rights to working with others in concerted activities and class-actions, instead relegated to trying to cope with disputes as individuals.

In union contracts, arbitration is a joint procedure to help enforce contracts, a system where unions and employers together agree on a professional arbitrator from the non-profit American Arbitration Association or similar group to consider and resolve disputes if internal grievances aren’t successful.

Outside of labor agreements, arbitration is much different, and forced arbitration isn’t like court. Instead of people getting a hearing before a presumably neutral judge, forced arbitration sends disputes to a third party usually picked by the company. In court, parties can question testimony and evidence and appeal, unlike arbitrations.

Corporate interests and the Trump administration are fighting the NLRB, which thus far continues to argue for some Obama-era decisions. Trump and his corporate sponsors claim that the Federal Arbitration Act, which requires courts to enforce arbitration agreements, overrules labor law.

The Supreme Court has never ruled whether the Arbitration Act supersedes a prohibition elsewhere in federal law, and it would be a huge precedent, the NLRB says, for employers to use “private contracts to eviscerate the public rights Congress protected in the NLRA.”

If the court favors forced arbitration, workers would give up rights provided in labor law as a condition of employment.

Class-action lawsuits often are the best way people can fight dishonest or illegal business practices. Class actions let people who lost relatively small amounts of money or shared a common injustice to join together to seek relief. Indeed, the New York Times in a series published last year showed that requiring arbitration discourages complaints – arguably Big Business’ purpose. Once blocked from going to court as a group, most people drop their claims.

F. Paul Bland Jr., director of the consumer-advocacy group Public Justice, said, “Corporations are allowed to strip people of their constitutional right to go to court. Imagine the reaction if you took away people’s Second Amendment right to own a gun.”

Many significant cases dealing with workers’ rights have been brought as collective or class actions.

“Workers depend on collective and class actions to enforce many workplace rights,” said Celine McNicholas of the Economic Policy Institute. “Employment class actions have helped to combat race and sex discrimination and are fundamental to the enforcement of wage and hour standards. Without the ability to aggregate claims, it would be very difficult if not impossible for workers to find legal representation in these matters.

“If the Court is persuaded by corporate interests and the Trump administration in this matter,” she adds, “ ‘Murphy Oil’ may be the last workers’ rights case the Supreme Court has the opportunity to consider for the foreseeable future.”