Craig Becker is general counsel to the AFL-CIO. He represents the employee party in NLRB v. Murphy Oil USA, Inc. before the Supreme Court.
“I am your voice” — that’s what Donald Trump promised American workers at the Republican National Convention last July. Yet this month, the Trump administration took an unprecedented step toward quelling the voices of workers.
In an extraordinary about-face, the solicitor general’s office informed the Supreme Court that the United States had switched sides — from affirming employee rights to defending employer authority — in three pending cases.
The question in each case is whether employers can force workers to contract away their rights to collectively mount legal challenges against workplace abuses. Under such contracts, employees lose the right to sue in court and can only bring individual claims in arbitration. They are not entitled to act in concert to assert common rights — such as earning a minimum wage, being free from discrimination or securing re-employment after military service.
If the Trump administration persuades the Supreme Court to uphold the forced waiver of employee rights through mandatory arbitration agreements, it will spell the end of class-action employment litigation. No well-counseled employer will forgo the opportunity to both privatize and atomize enforcement of its legal duties. Already, employers across industries — such as United Health Care, AT&T Mobility, Ernst & Young and Hooters — have imposed such contracts stopping workers from cooperating to protect their rights.
Standard agreements forbid even two employees from banding together, even in seeking arbitration. The restraint on concerted action revives the ghost of the “yellow dog” contract, which once barred workers from joining unions and has been unenforceable since the New Deal. Now mandatory arbitration agreements inhibit claims against employers by placing the risk of vindicating rights on individuals acting alone.
Workplace arbitration is not simply a privatized alternative to adjudication in the courts. Recent research reveals that it can enable employers to erode enforcement of legal protections and minimum standards when its terms prohibit employees from joining together to challenge violations. Mandatory arbitration reduces workplace claims to “a minuscule number,” reported Jean R. Sternlight, a law professor at the University of Nevada at Las Vegas. While millions of employees are bound by compulsory arbitration agreements nationwide, fewer than 2,000 file arbitration claims annually.
In a 2012 ruling, in which I participated, the National Labor Relations Board held that arbitration agreements requiring employee waivers of rights to bring claims collectively violate the National Labor Relations Act. The NLRB held that these “ ‘yellow dog’-like contracts” interfere with the right of employees to join together for “mutual aid or protection” and particularly to undertake “concerted pursuit of workplace grievances in court or arbitration.”
That is the ruling at issue in the workplace arbitration cases pending in the Supreme Court, and those are the cases in which the solicitor general’s office has reversed position. Last September, the solicitor general’s office petitioned the court to uphold the NLRB’s “expert interpretation.” But this month the same office filed an amicus brief arguing the NLRB was wrong.
Acting solicitor general Jeffrey B. Wall now argues that all terms of workplace arbitration contracts must be enforced under the 1925 Federal Arbitration Act. But that law was enacted to ensure that courts respect voluntary arbitration agreements, primarily involving commercial contracts between business parties. Such agreements have little to do with workplace arbitration contracts barring workers from acting in concert. As the solicitor general’s office told the court last fall, “contracts that are unlawful under the NLRA” are unenforceable under the Arbitration Act. Now the office candidly ascribes its contrary view to “the change in administration.”
In other words, it was the advent of the Trump presidency that prompted such a peculiar reversal. The closest parallel occurred when the Reagan solicitor general’s office switched sides to defend Bob Jones University, which had lost its tax exemption due to racial discrimination. In that instance, the university brought the appeal to the Supreme Court. In this instance, however, the solicitor general’s office petitioned on behalf of the NLRB, then flipped to oppose the agency.
Through its troubling reversal, the Trump administration is asking the Supreme Court to expand upon a series of recent decisions limiting the right of consumers to sue companies and upholding mandatory, individual arbitration. These decisions not only restrict the right to seek redress for harm, but have also “insulated powerful economic interests from liability,” as Justice Ruth Bader Ginsburg explained in a 2015 dissent.
The Trump administration would similarly insulate employers from responsibility for violating workers’ rights. Does the president believe a construction worker owed wages will dare individually to seek redress through arbitration? Or a hotel maid denied promotion based on race? Will he speak for those workers? So far, it does not appear so.