Editor's Note :

Editor's Note :

We are hosting an online symposium on Epic Systems v. Lewis, in which the court held 5-4 that arbitration clauses in employment contracts that require employees to forego class and collective actions are enforceable. Contributions are available at this link.

On Monday morning Justice Elena Kagan joined Justice Ruth Bader Ginsburg’s dissent from the Supreme Court’s majority opinion in Epic Systems Corp. v. Lewis, which held that arbitration clauses in employment contracts that require employees to forego class and collective actions are enforceable. On Monday evening Kagan spoke at the American Law Institute’s 95th annual meeting with a fellow former solicitor general, Paul Clement – the attorney who argued for the winning side in that case.

As Justice Antonin Scalia – Kagan’s former colleague and Clement’s former boss – famously said to those who disagreed with the Supreme Court’s decision in Bush v. Gore, “Get over it.”

Kagan and Clement both spoke fondly of the former justice. “I loved my repartee with Justice Scalia,” Kagan recalled. “He was sometimes aggressive but always totally straightforward and honest.”

Credit: Risdon Photography

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Archis Parasharami is a partner and Dan Jones is an associate at Mayer Brown. Parasharami contributed to an amicus brief for the Chamber of Commerce in support of the employers in Epic Systems Corp. v. Lewis.

One year after the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, the National Labor Relations Board advanced a novel interpretation of Section 7 of the National Labor Relations Act, which gives employees the right to organize, bargain collectively and “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The board held that Section 7 encompasses the right to bring a class or collective action. The board went on to say that an employment agreement that requires employees to resolve their disputes by arbitration on an individual basis is an unfair labor practice under Section 8 of the NLRA. The NLRB had never asserted that view before in the 77 years since the adoption of the NLRA. And the NLRB’s general counsel stated as recently as 2010 that the NLRA has no impact on the validity of such arbitration agreements.

Yesterday, the Supreme Court, in an opinion by Justice Neil Gorsuch, rejected that approach to the interaction of federal labor and arbitration law. The court’s decision in Epic Systems correctly holds that the Federal Arbitration Act precludes the NLRB’s novel attempt to declare arbitration agreements requiring “one-on-one” arbitration unenforceable. Plaintiffs’ class-action lawyers and other critics of employment and consumer arbitration will inevitably attack this decision, but it is both legally correct and right as a matter of policy — although the opinion itself was careful not to make policy judgments.

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Nicole G. Berner is general counsel and Claire Prestel is associate general counsel of the Service Employees International Union. SEIU joined an amicus brief in support of the employees in Epic Systems Corp. v. Lewis.

In recent years it has become increasingly common to hear chatter — even among progressives – that labor unions and worker organizing are obsolete relics of past glories.

Yet anti-worker corporate interests have never lost sight of the fact that workers can wield enormous power when they join together to protect workplace rights. The “Fight for $15 & a Union” campaign, supported by the Service Employees International Union, and the recent wave of teacher activism are only the most recent examples of what workers can accomplish when they act in concert. It is precisely to undermine this power that corporate interests and billionaire-funded extremists rush to pass “right to work” legislation wherever they can and why they have funded an extended battle in the courts to attack unions and divide workers.

The Supreme Court yesterday, in a 5-4 decision, gave another victory to these anti-worker extremists. Under yesterday’s Epic Systems opinion, the Supreme Court majority gave employers the green light to force their employees, as a mandatory condition of employment, to forfeit their decades-old right to join together with co-workers in class or collective actions, or even with just a single co-worker, to pursue claims for stolen wages, sex, race, age, or other discrimination and other workplace claims.

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Tuesday round-up

By on May 22, 2018 at 7:31 am

The Supreme Court decided two cases yesterday. In a major employment case that was argued on the first day of the term, Epic Systems v. Lewis, the court held 5-4 that arbitration clauses in employment contracts that require employees to forego class and collective actions are enforceable. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. Subscript has a graphic explainer for the decision. For USA Today, Richard Wolf reports that “[m]illions of workers routinely sign such arbitration agreements unknowingly, only to find out later that they are barred from collective action.” Additional coverage comes from Jess Bravin for The Wall Street Journal, Marcia Coyle and Tony Mauro at The National Law Journal (subscription or registration required), Adam Liptak for The New York Times, Ariane de Vogue at CNN, Robert Barnes for The Washington Post, Lawrence Hurley at Reuters, Kevin Daley at The Daily Caller, Andrew Hanna and Josh Gerstein at Politico, Lydia Wheeler at The Hill, Elizabeth Lowman at Jurist, David Savage for the Los Angeles Times, Dave Jamieson at HuffPost, Greg Stohr at Bloomberg, and Nina Totenberg at NPR, who reports that the dissent warned of “huge underenforcement of federal and state statutes designed to advance the well-being of workers.” According to Joan Biskupic at CNN, the “forceful tone” of the dissent, parts of which Justice Ruth Bader Ginsburg read from the bench, suggests that “Ginsburg and the three other liberals may increasingly be in the minority as the court nears the end of its annual session in late June — and more likely to speak out.”

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Ben Robbins is senior staff attorney for the New England Legal Foundation.  He filed an amicus brief for NELF in support of the employers in the consolidated cases in Epic Systems Corp. v. Lewis.

Although the Supreme Court’s decision today in Epic Systems Corp. v. Lewis was a close one (5-4), the result was not surprising, in light of the court’s recent decisions establishing the primacy of the Federal Arbitration Act over other, potentially conflicting federal statutes.  At issue was whether the FAA’s mandate to enforce arbitration agreements according to their terms was displaced by Section 7 of the National Labor Relations Act, which grants employees “the right … to engage in other concerted activities for … mutual aid or protection.”  In particular, the employment agreements in these three consolidated cases all required the employees to arbitrate their work-related disputes on an individual basis only.  So the question was whether the NLRA’s protection of “other concerted activities” created a substantive right to pursue group legal action that invalidated the agreements, by displacing the FAA’s mandate to enforce class and collective action waivers in arbitration agreements.

The majority answered no.  The general residual phrase “other concerted activities” did not displace the FAA and did not guarantee employees the right to pursue group legal action against their employer in court or in arbitration.  Instead, this phrase guaranteed employees the right to join together in the workplace to address working conditions among themselves and with their employer.  Group legal action is simply not the “strength in numbers” that Congress had in mind when it enacted the NLRA to protect employees’ freedom of association in the workplace.  In essence, the court preserved the peaceful coexistence of two unrelated federal statutes that had remained undisturbed until only very recent times.  While the FAA requires the enforcement of arbitration agreements according to their terms, the NLRA serves the different purpose of protecting employees’ freedom of association in the workplace.

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Petition of the day

By on May 21, 2018 at 6:00 pm

The petition of the day is:


Issue: Whether 42 U.S.C. § 1395hh(a)(2) requires the Department of Health and Human Services to conduct notice-and-comment rulemaking before providing instructions to a Medicare Administrative Contractor that makes initial determinations of payments due under Medicare, when those instructions rest on a non-legally-binding administrative interpretation of a relevant statutory provision.

This afternoon Justice Ruth Bader Ginsburg received the Henry J. Friendly Medal from the American Law Institute. The medal “recognizes contributions to the law in the tradition of Judge Friendly,” whom Chief Justice John Roberts today called “the greatest American judge never to serve on the Supreme Court.”

Roberts undertook “the happy assignment” of presenting the award to Ginsburg and – as he informed his colleague – contributing “to this effort to increase your public profile.”

The audience laughed at this reference to Ginsburg’s rise to cultural stardom, which includes a new documentary celebrating her life. Ginsburg herself, after receiving the award, gave “a word about the notoriety: It is amazing.”

Credit: Risdon Photography

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Rarely have I read a set of opinions that so closely tracked the discussion at oral argument as the opinions this morning in Upper Skagit Indian Tribe v Lundgren. The case involves a narrow and technical question of sovereign immunity: whether the immunity of a federally recognized Indian tribe protects it from a suit in state court to adjudicate the tribe’s claim to land located outside the tribe’s reservation. The Washington Supreme Court rejected the tribe’s plea of immunity, reasoning that tribal immunity never applies to suits that are brought “in rem” (against the land), as opposed to “in personam” (against the tribe itself). The Supreme Court’s decision this morning rejected the state court’s analysis for the time being, though the various opinions leave little reason to think that the tribe ultimately will prevail.

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After the court put a major dent in its pending caseload last week, with five relatively significant decisions, including the much-discussed ruling favorable to sports betting in Murphy v. NCAA, the odds on this week’s lone opinion day is that we’ll get fewer decisions.

We had to jump on a plane right after decisions last Monday to get to a conference in Los Angeles, where the weather was sunny and in the 70s. Did it rain here last week?

The court takes the bench at 10 a.m., with Justices Clarence Thomas and Stephen Breyer absent. Justice Sonia Sotomayor has returned to the bench for the first time since her shoulder replacement surgery on May 1. The justice evidently had to cancel her scheduled visit last week to the University of California at Davis, where she was to address the law school commencement, because of her recuperation.

Justice Ruth Bader Ginsburg is wearing her “dissent jabot” this morning, the bejeweled dark collar she showed off in the documentary “RBG.” We’ll soon learn why.

Justice Ginsburg dissents in Epic Systems v. Lewis (Art Lien)

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Justices grant four new cases

By on May 21, 2018 at 11:55 am

This morning the Supreme Court added four new cases to its docket for next term, on topics ranging from federal pre-emption to the rules governing attorney’s fees for Social Security claimants. The justices once again did not act on a petition by the federal government to nullify a ruling that cleared the way for an undocumented pregnant teenager to receive an abortion.

In Virginia Uranium v. Warren, the justices agreed to weigh in on questions of pre-emption – that is, when federal law trumps state law – and the Atomic Energy Act. The petition for review was filed by Virginia Uranium, a company that owns and wants to mine the country’s largest-known deposit of uranium ore, which is used for both nuclear power plants and nuclear weapons. The company was barred from doing so by a Virginia law prohibiting uranium mining. That ban, the company contends, stems from concerns about radiation from both the process used to transform the mined product into a form in which it can be used (known as “milling”) and the waste that results from that processing, known as “tailings.” And those concerns, the company argues, conflict with the Atomic Energy Act, which gives the federal Nuclear Regulatory Commission exclusive power to regulate uranium milling and tailings-management activities.

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