If you’ve been thinking we should get together and sue the bosses, you’re well out of luck. In the words of Justice Neil Gorsuch in Epic Systems Corp. v. Lewis, his first major decision since joining the court last year, “The policy may be debatable, but the law is clear”: It’s not going to happen.
Adding an additional log to the wildfire that is federal labor law, the Supreme Court issued another decision last month to further alienate and divide the American workforce, prohibiting collective access to the courts in the name of individual choice. The decision forces individual workers with an arbitration clause in their contracts to stake out a claim alone or be shunted into individual dispute resolution rather than join with their colleagues to fight labor abuses. This decision is based on the 1925 Federal Arbitration Act (FAA) and a strict textual reading of the 1935 National Labor Relations Act (NLRA), which protects “concerted actions” such as “picketing,” but not—the majority claims—class action.
Unfortunately, the dissent fails to mention that the apocalypse is now.
In the decision, Gorsuch praises the NLRA, but writes that “missing entirely from this careful regime is any hint about what rules should govern the adjudication of class or collective actions.” Dismissing Ginsberg’s dissenting claim that this ruling will cause widespread contract abuse, particularly for vulnerable workers, he writes, “Like most apocalyptic warnings, this one proves a false alarm.”
Unfortunately, the dissent fails to mention that the apocalypse is now. The use of arbitration, in which workers are forced into one-on-one dispute resolution outside of the court, has increased from 2 percent of contracts in 1992 to 54 percent of contracts in 2018. Arbitration has been called an “epidemic” which, according to the Economic Policy Institute, “deprives workers of their rights” and allows the company to set the rules of engagement, even in cases of whistleblowing or abuse. The court’s opinion assures the reader that arbitration is simpler, faster, and more effective than litigation (adjectives that could be used to describe a guillotine, or a firing squad), but the arbitration process is far from equitable. To explain how off-base this decision is, Noah Feldman writes, “If you lived on the moon, with no knowledge of the realities of labor relations or the politics of class actions, you’d think [the Gorsuch opinion] was obviously correct.”
A major false assumption of the conservative majority posits that workers have the choice to walk away from employment contracts that they consider unfair, as if workers are presented with a cornucopia of options at the moment they receive their contract. The New York Times editors write, “[waiving your right to class action is] not negotiation, it’s extortion.” Even if the entire non-unionized workforce were to miraculously turn our backs en masse on unfair contracts, the remaining companies could rewrite the rules again in the name of expediency, further curtailing the worker’s access to democratic systems—and we’d always lose.
Clearly, this decision is squarely in line with the long arc of the conservative court. Workers, in this interpretation of the law, will do everything in their power to undermine business, collectively suing management into oblivion as an unfireable, unionized mob. In the corporate conservative imaginary of individual choice, private arbitration is simpler and more effective than joining with colleagues to sue the bastards, even in cases when the employer is explicitly breaking the law. In reality, these small claims will likely never make it to court, which means that millions of workers will effectively lose their right to a fair trial, being forced into “take it or leave it” contracts that violate civil rights. The decision further demonstrates that under rampantly unequal capitalism, work only provides the illusion of choice and autonomy; at the end of the day, your time is still owned by employers.
To illustrate, private companies, driven by overwhelmingly predatory employment politics, have ensured that the majority of the American public is a precariat, with union membership at an eighty-year low and gig workers with minimal rights and benefits rapidly approaching 40 percent. The breaking of bonds between workers is a hallmark of conservatism, and the Epic case forces the worker to accept her contract, low wages, and exploitation with a sigh and a politely worded email to HR—if she won’t be fired for defying authority. Like most American workers, I’ve felt these consequences directly: a few years ago, twenty of my colleagues were laid off without warning or recourse. The reason? None given. We signed an at-will contract.
While labor’s fear of an activist conservative court is real, particularly as the impending Janus v. AFSCME case threatens to further weaken workers’ collective rights, the decision is in line with the very basis of American employment contracts—the mistaken belief that absolute employment or “at-will” is an equal system under capitalism. In 1985, a Texas court wrote, “Absolute employment at will is a relic of early industrial times . . . The doctrine belongs in a museum, not in our law.” And yet, driven by stubborn conservative and neoliberal ideas of individualism, it remains the default employment arrangement for the majority of American workers.
The limited stopgaps put in place by individual states to protect workers in at-will arrangements are an indication of how the Epic decision could be handled at the state level. However, the few cases that make it to the courts compared with rampant violations of workers’ rights means the burden of proof will almost always rest squarely on the shoulders of the employee. The power dynamic of both at-will and arbitration is unjust, and employment contracts are consistently punitive toward employees: a 2002 study states that approximately 85 percent of non-union employment contracts are at will, and further, that employees greatly overestimate their job security. The majority of workers sign these contracts out of naïveté, lack of options, or both. When they are ultimately mistreated, they are told to find another job—which likely enforces the same conditions of employment.
It bears mentioning that the Epic case comes forward at a time when large, monopolistic tech companies are rewriting the rules of employment in their favor. There has already been evidence that the decision will lead to a further explosion of arbitration clauses, and as usual, tech companies are a bellwether. Companies like Uber have been criticized for their reliance on private arbitration, and only recently eliminated arbitration for sexual misconduct claims due to public pressure. Edward Escobar, an Uber and Lyft driver and founder of the Alliance for Independent Workers, told me, “It’s a kangaroo court—if it goes first to arbitration, it’s a de facto way to cover up other corporate malfeasance and malpractice.” Faced with few choices in a company with seemingly no ethical compass, drivers are often expected to accept Uber’s constantly changing legal agreements—while driving their own cars. Rapacious capital has eliminated the social contract, and the Supreme Court is eroding the employment contract—so now what?
The weakening of collective access to the law and conservative primacy of the individual should be a concern to the Left, but if labor history is any indication, sustained, collective action is a greater agent of change for the worker than any federal mandate or court decision. The law may be debatable, but the future is clear: we have nothing to lose but our chains.