Labor / Employment, On The Job

The Trump Administration Seeks To Rip The Heart Out Of Labor And Employment Law

Paul Clement of Kirkland & Ellis will argue before the Supreme Court in these cases.

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Paul Clement (by Alex Wong/Getty Images)

“Your last chance to negotiate / Send in your seconds / See if they can set the record straight.” — Lin-Manuel Miranda

On Monday, former Solicitor General Paul Clement and current Principal Deputy Solicitor General Jeffrey Wall will argue against workers and the National Relations Labor Board (NLRB or the Board) in front of the Supreme Court to resolve this question: whether workplace arbitration agreements that ban class actions violate federal labor laws.

For you law students reading at home, Monday’s one-hour oral argument will aim to resolve a trio of consolidated labor and employment cases: Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil USA. (Who would argue on behalf of the private companies was an open question for a time, but ultimately Paul Clement of Kirkland & Ellis got the nod.)

In a peculiar case, and perhaps a microcosm of our times, Monday’s argument pits the Justice Department directly against the NLRB.

As highlighted by USA Today, last week, Justice Ruth Bader Ginsburg told first-year law students at Georgetown University Law Center: “We will have two arguments by government representatives on opposite sides of the issue. That will be a first for me in the 25 years I’ve served on the court.” Whereas under Obama, the Justice Department argued that companies could not force workers to file cases alone through arbitration, under Trump, “the office reconsidered the issue and has reached the opposite conclusion.”

This week, I had the opportunity to catch up with Michael Rubin, a partner at Altshuler Berzon LLP in San Francisco, and counsel of record on an amicus brief on behalf of ten international labor unions, the National Employment Law Project (NELP), and the National Employment Lawyers Association (NELA).  I also had the chance to speak with Ceilidh Gao, a NELP attorney with significant experience representing unions and workers.

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The following is a (lightly edited and condensed) write-up of our conversations:

Michael Rubin

Renwei Chung (RC): What are the ramifications of an adverse decision to workers in this case?

Michael Rubin (MR): Without the ability to pursue workplace claims on a joint, collective, or class action basis, most workers will be unable to pursue those claims at all; and even if a handful of workers file individual claims, they cannot obtain meaningful injunctive relief, or prevent any pattern and practice of violations through their individual actions, especially in a confidential arbitration forum.

The potential consequences to effective workplace law enforcement, if the Supreme Court reverses the Board, are therefore devastating.

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Employers throughout the country will begin requiring individual-only claims filing; workplace violations will increase as statutory enforcement decreases; law-abiding companies will finding it increasingly difficult to compete against less scrupulous companies that cut labor costs through wage theft; and eventually the courts will be deprived of their role as guardians of statutory rights, because discrimination, wage-and-hour, and other workplace claims will no longer be litigated – despite the inevitable increase in workplace violations.

RC: You stated that an adverse ruling in this case could essentially begin the privatization of an entire branch of our government. Can you elaborate on this? 

Ceilidh Gao

Ceilidh Gao (CG): Following Citizens United, corporate influence over our elected officials has received a lot of attention. But widespread forced arbitration essentially privatizes another branch of government – the judiciary.

In forced arbitration, claims are pursued in private forums, outside of the public eye. Often there are confidentiality provisions. As we’ve seen in recent scandals at Fox News, this means that dangerous and disgusting practices can stay secret for a long time. In forced arbitration, there are no public decisions and no courts creating legal precedent. Corporations are able to keep even widespread unlawful or unethical behavior away from the eyes of the public, lawyers, and lawmakers.

A recent study from the Economic Policy Institute estimates that 60 million workers in the United States are subject to forced arbitration clauses, and of those 25 million are subject to an individual arbitration requirement, barring class, collective or group action. If the Supreme Court decides this case in favor of corporations, we can expect those numbers to rise, while it becomes more and more difficult for workers to access our court system.

RC: You mentioned that the government will be arguing both sides of this issue. Can you explain this a little more and/or highlight any other interesting facts for our law school audience?

MR: The cert petition in Murphy Oil was filed by the Solicitor General’s office on behalf of its client, the NLRB.  In that cert petition and the reply in support of cert, as well as more than a half-dozen appellate cases expressly approved by the prior Solicitor General, the United States took the consistent position that the Board properly concluded that an employer’s prohibition against group legal action violated Section 7 and 8(a)(1) of the NLRA.

The Board has steadfastly held to this position, in close to 100 cases decided in the past four years.

In June 2017, though, the Acting Solicitor General, Jeffrey Wall, speaking for the Trump Administration, completely changed course and decided to stand with the employers against the workers, filing an amicus brief that basically said that everything the Board and the prior Solicitor General had written on this issue was wrong, and that the Federal Arbitration Act was a “super statute” that trumped the national labor policies set forth in the Norris-LaGuardia Act of 1932 and the National Labor Relations Act of 1935.

Earlier this week, the Supreme Court granted leave to the Solicitor General to argue orally on the side of the employers. The Board’s General Counsel, Richard Griffin, was already set to argue on the side of the Board and the workers.

As a result, the Trump Administration (and the employers) will be arguing against the independent NLRB (and the workers), for perhaps the first time in history.

We are not aware of any other case in which the federal government has argued against itself in this manner; and if not for the increased politicization of the Solicitor General’s office, this should never have happened.

RC: Between 2012 and 2014, the use of class and collective actions bans in forced arbitration provisions more than doubled, from 16% to 43%. You recently wrote about how corporations are working to disintegrate workplace civil rights protections through forced arbitration clauses banning class and collective actions. Can you summarize your thoughts for our audience?

CG: If the Supreme Court rules for the corporations in this case, it will radically tilt the landscape against regular working people. Collective litigation is crucial to making the protections of our workplace laws real.

The average person doesn’t have the resources to take on a huge corporation on their own. Often the amount an individual is owed is small compared to the cost of retaining a lawyer – group actions exist for this very reason, so that regular people can pool their claims and get a lawyer to take the case.

Also, when it comes to workplaces, people are concerned about retaliation – termination, poor treatment, or more. No one wants to put a target on their back when it’s a question of their livelihood. Class, collective, and group actions also provide an important mechanism for workers to fight illegal practices without risking retaliation.

Eliminating class, collective, and group legal action results in claim suppression. It’s a backdoor way of repealing laws that are on the books. Wage laws, Title VII of the Civil Rights Act, anti-discrimination laws and more – these protections are of little use if workers can’t enforce them.

On behalf of everyone here at Above the Law, I would like to thank Michael Rubin and Ceilidh Gao for taking the time to share their insights and expertise with our audience. We wish them continued success in their careers.

Earlier: Supreme Court Returns With New Faces, Same Contempt For Working People

Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn.

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