by Rachel Geman, Partner, Lieff Cabraser Heimann & Bernstein, LLP
A Kafkaesque beginning usually portends a bad ending, and today’s opinion in Epic Systems Corp. v. Lewis is no exception: “Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?”
In a 5-4 decision, Justice Gorsuch’s majority opinion ruled that employees’ rights to participate in concerted activities under the National Labor Relations Act (NLRA) does not include the right to participation in class and collective actions. The Federal Arbitration Act (FAA) beat the NLRA.
Unfortunately, the Supreme Court’s views about arbitration (and interpretation of the word “agreement”) in consumer and employment contexts are no longer the relative surprise they were in 2011. The Supreme Court has not changed, in this sense, but the world around it has: as just two examples, the #metoo movement and empirical studies of the infirmities with pay secrecy show that silencing and silo-ing employees creates various kinds of inequality and other problems.