Let Wronged Workers Join Together for Justice

The Supreme Court is set to hear three cases on companies’ arbitration agreements that bar employees from pressing class action claims.

Comments: 58

  1. Pre recession my employer wasn't paying us for our 10 minute breaks even though they're required to by law. We had a very wealthy employee who was working there because he was bored who had the means to sue regardless of the arbitration clauses. Without him our employer would likely have continued the behavior but they settled with him and repaid the rest of us for our lost time to avoid bad press. Arbitration clauses are quiet. They don't demand company wide change. They also stop us from knowing how big a problem is. These companies have too much power, hopefully the supreme court recognizes that they stop justice from being served.

  2. The problem is that there is Republican-President appointed majority of U. S. Supreme Court justices deciding these issues.

  3. This op-ed properly documents the difficulties workers, and particularly low-paid workers, have when seeking to legally confront what they allege are unfair practices by corporations. But it also should have presented the other side, and it didn’t. The aggregation of hundreds or thousands of cases in class actions have become the bread-and-butter for many law firms. This often results in nuisance suits whose blackmailed settlements enrich the lawyers, often provide little to the individual members of a class, and fill our overburdened courts with cases whose primary outcome is to fill lawyers’ pockets. They’re also a great inducement to subsidizing the legal profession generally, as corporations must hire lawyers to defend themselves and engage other legal firms to do so. I would support a U.S. Supreme Court ruling that weakened the requirements to enforce arbitration agreements in all cases if we could fix the problem of legal profession predation. Now, some will argue that the issues are separate and each should be focused on separately, but my response would be that if we did that what would happen is that while we’d see arbitration weakened, inevitably the interests of lawyers would be protected through inaction – we’d simply further protect an already-protected market for predatory legal fees. I see no reason to suggest that Kennedy will vote differently here than he has in the past, resulting in a 5-4 decision keeping arbitration enforcement strong.

  4. If so-called "nuisance suits" were as prevalent as claimed then business growth would stall and new start-ups would drop off. Neither is happening. On the contrary, profits are at an all time high, VC is so healthy some are labeling it a bubble. Meanwhile, supposedly self-regulating entities like Wells Fargo and Equifax prove that much work still needs to be done.

  5. Employers usually have more money to throw at lawyers than individuals do. Corporations, also known as employers, appeal every decision against them to death to avoid paying anything or changing anything. Corporations will also come up with the most interesting excuses not to do something. Remember the excuses over putting a brake light on the rear of a car where it was obvious? I do and it wasn't about our safety. It was about how inconvenient it was for them to have to incorporate such a feature into their designs. Yet once they did it the difference for us was tremendous. We could tell if the running lights were on and the brakes were on. Fewer accidents. Arbitration is merely a way for corporations to avoid responsibility for their actions. So is keeping out unions that might enforce labor laws. Given the abuses in today's gig economy employees of all sorts need protections from the overwhelming powers corporations have. As a temp worker I once had to do training that I was not supposed to do. Yet I couldn't object because if I did I'd be out of a job. Had I been represented by a union, even as a temp, the corporation would not have been able to get away with that. Unions got us most of the benefits we have now. By putting the GOP in office we're allowing corporations to erode our rights in the workplace. Wronged workers should be able to file class action lawsuits. It's the only way to hold a mirror to corporate America.

  6. You guys don't even make the rational case that everyone looks out for his interests -- corporations, unions, individual workers, predatory lawyers. professional complainers on BOTH sides -- and claim that if there must be abuse then let's protect one side at the expense of the other. But corporations ALREADY erect immense barriers to gainful employment, and they'll simply intensify these efforts and find a way around the end of arbitration enforcement if they must, designing other means of accomplishing the same purpose. A middle-way needs to be found that optimally protects worker rights without excessively damaging corporations. As I predict, the U.S. Supreme Court likely will look at the matter and leave arbitration alone. So where does all your outrage get any of us?

  7. Absolutely agree. These non-competes, arbitration clauses, and clauses that demand fealty even if the employer eliminated your job (and livelihood) must end. It is all the employer and nothing for the employee. Unless you are on a contract with a golden parachute this is nothing but servitude.

  8. The unions in the 1938 St. John´s case were misguided of course, and to think what a devastating effect that had on women´s rights post WWII when they had to give up their decent jobs for the returning men - even though many women also served in the military. This paved the way for decades of legislation and trouble for US families. Clearly as your editorial points out class action suits are a last resort in an era of too much corporate power. Let´s hope the power shifts again. This does not effect only low wage lawyers Professor, if you drive 20 minutes either way from the Stanford campus and interview US citizens being displaced throughout the google-apple-yahoo lands by H1B visa workers lower paid and lobbied for by their billionaire masters you will see the same dynamic. If fact just walk over to the engineering school from your office and ask how the students feel about balance of power in the industry now.

  9. The biggest weapon that big companies and corporations have against working class American employees is....illegal aliens. Most illegals come from Mexico. Why tolerate a union or pay union wages, when you can hire an illegal for $4 cash under the table -- and pay no unemployment insurance, no payroll (SS and Medicare) taxes, etc. and your total cost is half or less of that of an American worker? Liberals speak out of both sides of their mouth on this issue -- they say they want unions -- but they also want open borders, massive illegal immigration, amnesty and the Dream Act -- all of which work powerfully to PREVENT unions, and to keep American citizens unemployed or underemployed.

  10. Consider this aspect of personal justice: "[W]orkplace disputes, particularly those involving low-wage workers, aren’t usually worth enough money for a single wronged worker to pay a lawyer or court or arbitration costs." Someone's entire life can be ruined with one such workplace dispute. I know. Access to the courts is a constitutional right. But now that constitutional right has little or no meaning.

  11. Another plea to allow the rapacious lawyers to generate their 40% fees from another source

  12. right, because workers do not need access to courts and justice

  13. Steve of CA: You make the 40% contingency fee sound as if it were a big deal, but the lawyers must earn it by obtaining a recovery from the defendant through a lawsuit with all of the attendant expenses and time expended. Meanwhile, the defendant's law firm is being paid handsomely by the hour billed monthly win or lose. If you want to reduce the contingency fee money going to these attorneys, there are two ways to proceed, deny the plaintiffs a remedy through, e.g. arbitration clauses, or stop taking the actions that result in damage awards. I think I know where you are coming from.

  14. The time-tested owner class tactic of setting men against women and black against white is enjoying an all time high degree of success. Why? Because, the owners have added an additional element, pitting domestic against foreign worker. When there exists the threat of using cheaper labor ("cheaper" not just in salary but in standards and protections) elsewhere, we all get dragged down.

  15. Its no longer about the law but politics, we already know how the Supreme Court will rule on this one, it's a corporate bench.

  16. Let us all show solidarity with our union sisters and brothers by pledging to purchase only motor vehicles that are assembled by the UAW. Non-unions shops like Honda, Toyota, Mercedes, Nissan and BMW are tools of the bosses who want to exploit workers. These companies put profits before people. Show these right wingers they can't win!

  17. Oh, ha ha ha ha ha ha ha! Let wronged workers join together for justice? In this country? It's a nice sentiment but that's as far as it will go. No other developed, industrialized nation is as hostile to its own current, past, and future workers -- the majority of its citizens -- as the United States. And no other political party is as hostile to those workers as Republicans. And five of the nine Supreme Court justices are devout Republicans. This Court, as it is currently composed, will never, ever side for the employee over the employer. The outcome of these cases are forgone conclusions, as is the case regarding union membership. Justice Asterisk will see to that. We workers just need to stop being so uppity and learn our place, I suppose. It's so hard to get good help these days.

  18. In America today, the playing field between Employers and Employees long lost any semblance of being level and to even consider it a Playing Field of any sort, anymore, hopelessly inaccurate. It is now a Coliseum where Employees are the hapless Christians that are just fodder for the Employer Lions whilst watched over for the amusement of the Corporate Emperor that controls almost every aspect of these "games"

  19. The National Labor Relations Act was passed to support FDR, who wanted labor unions to keep him and his cronies in Congress in office. It's called pandering, and it came from a tyrant. With hindsight, today's SCOTUS justices will note and admit and refuse to perpetuate the evil emanating from everything FDR.

  20. you can always spot a goober by whom they hate. The president who did more for americans than any other - how telling. Please realize that MA leads the nation in almost every area thanks to liberal policies.

  21. FDR's policies were simply Hoover's failed policies, with a Progressive label on them. Guess what? Not only did they fail for Hoover, but they failed for FDR and resulted in the Great Depression. But you have to actually read history, instead of burying your Progressive head in the sand. Did you read "Grapes of Wrath"? There's a scene where the Joads watch Federal agents burning and destroying food - because the farmers had a surplus. This was FDR policy writ large. But again, you actually have to read history. Like the trial of a drycleaner who dared to offer services at a lower price than what FDR's moronic economics whiz kids had declared to be the "correct" price. Of course, if you studied actual history, you'd contemplate the comparison between FDR's policies and those of the barbarians running the Soviet Union. But then again, I can always spot a Progressive by their lack of intelligence.

  22. "The Grapes of Wrath", though a powerful story, is a work of fiction. It is one man's interpretation of the Great Depression, and is not a history book. Sorry, Hoover failed, and FDR succeeded.

  23. As long as employees are viewed as disposable, interchangeable, and costs by employers they will not be treated with dignity, respect, or as human beings. The one thing that unions did do for employees was give them a place or person to go to when the employer had treated them unfairly whether by firing them, refusing to promote them, or disciplining them for something they hadn't done. Today as employees we have no protections from the capricious actions of employers. We all know people who were fired because they complained about violations that could endanger them or others. We know of colleagues who were fired because they were a year short of being vested. And then there are those of us who have been downsized because we were in our 50s and too expensive or we were on family leave and our jobs disappeared. It never seems to occur to employers that if they want good employees they need to start treating us like human beings rather than disposable widgets, potential criminals, or stupid idiots. It says something about employers in America that is very troubling when they treat even potential employees like criminals, and don't want to allow us to review them when it comes to how we're treated. Unions exist in other countries and in those countries employees are treated better. Of course in those countries citizens aren't viewed solely as consumers or enemies or as idiots to be lied to all the time.

  24. Let's not forget the GOP went to war on unions with the cooperation of their rank and file. I pity those that can't afford to get out

  25. Forcing public employees to pay union fees seems to me like something that should not be legal. I don't know about all the union and labor arguments for it. It just seems wrong. I think the other side is going to win this one, to be honest.

  26. Annette: Let me know if I am restating your comment accurately. Forcing public employees to pay unions for the expense of negotiating work agreements and seeing that they are enforced in the favor of the employees is wrong because you should always avoid compensating people working on your behalf if you can get away with it. For workers to organize and negotiate work conditions and compensation with the employer is wrong because the employee should not have any bargaining power versus the employer and should accept whatever the employer wants to provide him/her. The employer should win on this one because Republicans have appointed more judges than the Democrats.

  27. "I don't know about all the union and labor arguments for it. It just seems wrong." You are why Trump is in the White House.

  28. Arbitration could be a lower cost, quicker alternative to litigation if it were handled differently. Ads it stands, the system is weighted in favor of the employer or company, since many of the firms are paid for by the same entities. If a system of publicly funded arbitration boards were to be established in which the parties involved were required to argue their own cases without legal representation, the system might work out to everyone's benefit.

  29. MikeCody: One average employee whose job is not representing a party in arbitration is nowhere equal to the employer's designated representative who does arbitration as an occupation. There is also a vast disparity in the ability of the employee vs. the employer to marshal and present evidence and witnesses. You are right about the need for independently funded and managed arbitration run more like, oddly enough, the federal court system. I would say state court systems, but there is too much corporate money in judicial elections.

  30. That sounds like many states' small claims courts. They don't level the playing field because corporations have officials to appear for them who are not formally-speaking their legal representatives.

  31. Deborah - the difference is that small claims courts have limits on how large a case can be allowed in, and they are more bound by procedural regulations and precedent, which are the very things a legally trained professional can exploit. An arbitration board, on the other hand, has a much greater latitude as to how they run and what they consider.

  32. Workers really need protection when trying to organize a union, protection from our Republican NLRB. Now the NLRB just rubber stamps the employers and owners concerns.

  33. I'm presently reading Jack London's dystopian novel "The Iron Heel" and this article and the freedoms disputed are an age old story. Are we an oligarchy or a democracy?

  34. This article points out two things - the fact that the US wanted men to make more than women in the first 80+ years of the 20th century, the assumption being that men were the 'bread winners' and women didn't need the money as much as the men. The second, and equally important, is that unions become powerful corporations, emboldened by the laws they create in DC. The push by the NYTimes and other media outlets for more unions is astounding to me. Having worked under a union at the start of my career all I can say is the union structure is as corrupt as DC.

  35. and yet the decline of union membership follows the same curve of the decline of workers income. Maybe the experience of one person doesn't tell the whole tale

  36. Unions built our modern country and created the most productive middle class in the world. They also shifted some of the outrageous fortunes being made by corporate owners into the hands of workers. The boundless greed of the richest Americans will once again crush the workers and continue to turn them into little more than peasants renting their homes from the rich, collecting their diminishing wages from the rich, and paying more in taxes (not income but payday and sales taxes) while the rich pay less. Support American unions. Buy union.

  37. It's odd that shareholders can file class action suits, essentially suing themselves, but employees don't the the right to sue a company and its shareholders.

  38. There have been several recent cases in which corporations attempted to persuade the Court to bar shareholder class actions. A new such attempt might well succeed with Gorsuch on the Court.

  39. why would republican judges ever vote for anything that helps workers? i will be shocked if they don't affirm the right of business to do anything they want in the interest of financial gain. I've lived too long to believe otherwise.

  40. "But came another surprise: Politically powerful unions quietly killed off bills that would have empowered women like St. John to bring class-action lawsuits challenging wages injustices." In fact the unions when they were lobbying to kill those legislations were acting in conformity with their ideology: Gomperism. As Harold C. Livesay in his book Samuel Gompers and Organized Labor in America demonstrates, Gompers was a bigot. "When asked by Woman's Home Companion in 1905 whether wives should work, he answered, 'Positively and absolutely, No.' 'In our time', he added, 'in our country ... the wife as wage-earner is a disadvantage economically ... and socially is unnecessary.' Once he had urged the affiliates to recruit women; now he joined in forcing women out of some craft unions." (p. 157) So this is the reason why Florence St. John went to court instead of her union, because she knew that she will never had the support of her union to fight for her right to equality. And that was not without consequences on the labor movement. "As a result, racism, sexism, and the antiimigrant mentality of the AFL's leadership as the craft-union form of organization stood in the way of organizing the industrial labor force."(p. 92) In 1938, most of the industrial unions organized by the CIO were only one or two years old.

  41. The highest court in this democratic, WE-THEY, diverse haven with, ostensibly, the most brilliant and knowledgeable legal minds, hopefully manifesting minimal human perceptual and judgmental flaws, who are expected to learn from personal and shared experiences, are to decide whether what was adjudicated in a complex reality THEN merits being continued or changed to meet today’s and tomorrow’s realities. All of these many words, their meanings, implications, consequences and derived relevant and irrelevant questions, resolvable as well as not, are subsumed under the code:Constitutional? Which “hides” a problematic either/or, banal binarism, when “reality,” however experienced,and expressed, includes nuanced ranges and continua.Built-in irony accompanies the current decision to be made about continuing or changing forced arbitration for anyone in a country which has, over time, adjudicated a range of laws disempowering employment discrimination.Legally-empowered discrimination, and institutionalized disempowering, of any worker, reminds me of the caveat by former Georgia Gov. Roy Barnes:“The law should be a shield for the weak and powerless,not a club for the powerful.“It is reasonable to consider that any individual-you, me- is powerless against a system of whatever size. In addition, it is interesting to consider that these JUDGES, chosen, and not elected, are employed for their lifetime with reasonable “work” conditions. They will never experience “forced arbitration.”

  42. Unions have been eclipsed by greedy employers who are anxious to turn the work-relations clock back to somewhere in the 1870s. Arbitration is now the preferred method to solve all our problems, just as Papa Smurf relied on magic and incurred the wrath of the fundamentalist Christians years ago. When will we realize that without trade unions the voice of our workforce is a whisper of what it should be?

  43. Employers were given the task of providing HC insurance in order to give employers more power over their workers Reagan went to war on unions to rob workers of the power unions provided. Just before he began rewarding companies for off shoring jobs. Americans wages declined on the exact same curve as union membership decline. And the goobers cooperated all the way. Now they blame dems for their lot in life. Goobers cut their own throats but can't accept responsibility

  44. This excellent op-ed left out the fact that when passed in 1925 the Federal Arbitration Act was explicitly NOT supposed to cover workers. Extending its scope to workers was the product of an activist Supreme Court.

  45. That was rather one-sided. Courts would not be able to function if they didn't have many cases go to arbitration. Even as it is, some courts can barely function under the sheer number of cases. Just as examples, in one case I have where I made a motion, we are scheduled to have oral argument 1 1/2 years after the motion was made. In another case, brought almost six years ago, we are nowhere near completing discovery. I once sat in on a calendar for no-fault auto cases. I believe it was 2015 - the adjourned date for almost every case there was 2019 - and that wasn't the end of those cases. Every litigator has similar stories. And, don't think b/c your case is in court that you will necessarily get better treatment. Judges are people too and every one of them different. There are great judges out there, but some pretty terrible ones too, some who will make life as bad as possible for litigants just to get rid of the case and many judges who twist arms to force settlements. The same goes for arbitrators. I personally would rather be in court, but I do understand why big companies (which I generally don't represent) in endless litigation, prefer a simpler process. I am not generally opposed to class actions in some types of cases if the rules are fair. Some rules seem to me very unfair and class actions are often more lucrative for the attorneys than the parties. For companies class actions can be a death knell and often force them to settle just to survive. Is that fair?

  46. If Professor Engstrom wants his argument to be taken seriously, then shouldn't he avoid loaded terms like "company-imposed employment contracts"? He knows perfectly well that contracts can't be "imposed." Contracts have to be agreed to or they have no force. Is he arguing that the arbitration clauses are buried out of sight in the fine print of the employment contract? He should also have mentioned that many economists would argue that jobs with arbitration contracts pay more then jobs that permit class actions. I suggest dispensing with the leftist boilerplate about "institutions with powerful incentives to block or blunt [employees'?] claims of right." Why doesn't he mention the powerful incentives that employers have to treat their employees with decency of fairness in the first place? Employees can always fire their employers by quitting. An employer with a bad reputation may have trouble hiring and/or have to pay a wage premium. Is Engstrom more concerned about the incomes of employees or trial lawyers? The latter will be clear winners. The former? I am not so sure. A suggestion: Employees who want the protection Engstrom advocates should buy insurance that will defray the costs of arbitration. Insurance is also a way of aggregating employees' interests. If there is no demand for this sort of insurance, then doesn't that tell us that employees don't see any need for the Court to change the present rules?

  47. Employers don't have to reveal the existence of all employment terms when they make their job offer : they typically only reveal onerous terms like arbitration agreements and non-competes on your first day of work, when you have already quit your previous job and have no real choice but to agree to those terms. I would agree with you if only terms specified along with the original job offer were legally binding on employees.

  48. You sir, live in a bubble. To fall back on the oldest employment canard, that workers and employers have "equal bargaining power," is simply laughable, were it not so outrageous. This plainly one-sided economic power is ever so the norm with today's corporate behemoths. If you want to be taken seriously, then you must understand that Professor Engstrom phrase "corporate imposed" reflects the reality of unequal bargaining power.

  49. Now that we have returned to the gilded age, I can't wait for the labor riots that finally got workers some rights. Of course now workers are much better armed. GOP'ers don't think ahead

  50. Arbitration is never in the interest of the little guy. The reason (binding) arbitration is imposed by the more powerful behemoth is simply to limit exposure (read money). No other reason. The single most important part of any arbitration clause is that the little guy waives all other processes. Precludes a day in court. The thinking by the behemoth is that this is the best way to put a cap on any exposure. The corollary is that the behemoth can do a calculus on what a possible wrong would be and then see if the numbers work out. If the wrong makes more money than an arbitration loss would cost, well.... Arbitration should be entered into by parties who have equal power. When they don't, and the balance of power is too lopsided, and the less powerful side had really no other choice but to enter into the arbitration, the courts should then call into question the validity of the arbitration. This, at least, would give the Goliath pause that he might at some point be up against a David.

  51. Back when the law authorizing enforcement of arbitration agreements was enacted in the late 1920's, the legislative history was "crystal clear" that the Act was intended to authorize enforcement of arbitration agreements between merchants, and expressly used the full extent of the Congress's power over interstate commerce that then existed to exempt employment agreements from the scope of the Act. Justice Stevens pointed this out in the 1990's. However, by that time, the pro-employer, anti-employee members of the Court had ignored this reality and construed the arbitration law to apply to contracts of employment. Now, when faced with an Obama-era reasonable construction of the National Labor Relations Act by the federal agency authorized to enforce the law, the five right wing justices will construe the law never intended to address worker contracts into overriding the authority of the law expressly protecting workers. Franz Kafka, meet the republicans and their duly authorized representatives on the Supreme Court.

  52. Arbitration is a kangaroo court, so when employees are forced to agree to arbitration, they are agreeing to give up all legal rights. This is a free pass to employers to lie, cheat, and steal as well as put employees in physical danger. It is mind boggling that the legislature didn't immediately outlaw the practice that is obviously abusive to employees.

  53. The GOP has been working for years to get rid of unions. They provide the people a means of fighting for fair wages, safety and employee benifits. Most important it gives workers political dollars to fight corporate rigged elections.

  54. As an in house counsel for over 30 years, I agree that in many cases the workers need protections. The problem with most employment class actions is that the aggrieved employees receive crumbs while the plaintiffs class action bar gets rich. It is the wrong solution for the problem.

  55. The courts should not legislate from the bench. Congress should reverse the 1938 provision put in at the unions' request. They should also outlaw contracts like the cellular carriers use to prevent courts' oversight of contractual abuses.

  56. Consumer contracts and individual labor contracts nearly always are "adhesion' contracts. For over 100 years, the common law of contracts has looked askance at adhesion contracts and has often found them "unconscionable" (and therefore unenforceable) either in whole or in part. Clauses in consumer contracts and individual labor contracts and other adhesion contracts that call for mandatory arbitration are ripe for attack as unconscionable, and therefore unenforceable. Of course, in 1925, Congress passed the Arbitration Act which made enforceable arbitration clauses in contracts "in commerce". Unfortunately, "commerce" in that Act has been construed to be as broad as "interstate commerce" in the Constitution, which, since the New Deal, has been extremely broadly interpreted, in no little part in order to justify the extremely broad reach of federal regulatory power ever since the New Deal. And, of course, federal statutes can override the common law. So, it will not be easy to have the Court decide that arbitration clauses are unenforceable. Worth making the effort, but chances of success very dicey. We will see what happens in the Supreme Court. Better would be if Congress itself amends the Arbitration Act to take consumer and individual labor contracts out from under the Act. Not easy at all now with the GOP Congress. But the effort should be made and talked up, and maybe, some day, Congress will amend the Arbitration Act. A good campaign issue for the Dems in 2018.

  57. Corporations have a parallel government by using arbitration. They avoid taxes by moving money overseas, and treat employees as disposable, then move jobs overseas. All in the name of shareholder demands of short term profits. But shareholders, many of whom purchase their shares via pensions and mutual funds have no say at all. Wall street, corporate boards and CEOs collude to syphon the riches into their coffers. They lobby, stealing power from the voters and continue to perpetuate this fraudulent "democracy" by saying they are above the fray. Most are global companies with no loyalty to the US, as soon as they bankrupt and pollute our environment, they'll move overseas.

  58. MEN, running everything, have no feeling for actual equality because they fear sharing power. There are some fair feminist, justice seeking men in the world, in general. But, there are not many of them. Is it any wonder that women are still behind, and that unions have failed? We all know what we have to do to make this right for our country.