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Wednesday, May 23, 2018

SCOTUS takes employer side in class arbitration decision

Yesterday I went on the air with Larry Mantle of Airtalk, NPR to discuss Epic Systems Corp. v. Lewis.  I tried to channel the 4 Justices in the dissent with whom I agree. Justice Ginsburg read her dissent from the bench - calling Congress to amend either the FAA or the NLRA to clarify the tension they present between enforcing arbitration agreements and the protected rights of employees to engage in concerted activity. Though Justice Gorsuch unsurprisingly begins his decision saying that there can be disagreement on the policy but the law is clear, I agree with the dissent on both the law and policy. Nothing in the language of the FAA suggests that the NLRA, passed a decade after the FAA cannot grant employees to band together in arbitration when it concerns the terms and conditions of their employment. The FAA legislative history, as well as the language that eventually was enacted, further suggests that Congress did not intend to limit the rights of laborers. As Justice Ginsburg writes, joined by Kagan, Sotomayor and Breyer, the majority is "egregiously wrong". [in the Atlantic yesterday, a similar point: 

Gorsuch accused Ginsburg, author of the dissent, and the other three moderate liberals—Breyer, Sotomayor, and Kagan—of improperly consulting their own policy preferences, refusing to harmonize two easily reconcilable federal statutes, and illicitly smuggling extra-legal commentary—legislative history—into judicial decisions. But this was purest rhetorical Pecksniffery. Gorsuch himself quite cheerfully invoked a pro-arbitration policy preference; did no more to harmonize the two statutes than did the dissents; and ignored actual history, and the text of the NLRA, in favor of a spurious extra-legal non-textual narrative of the FAA.]

The battle isn't over - Justice Ginsburg in the end of her opinion tries to salvage at least discrimination arbitration, since Epic was about wage and hour: : “It would be grossly exorbitant to read the FAA to devastate Title VII of the Civil Rights Act of 1964”.  You can listen to my discussion with Larry Mantle on AirTalk here.

Posted by Orly Lobel on May 23, 2018 at 05:41 PM | Permalink

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