Sunday, May 27, 2018

SCOTUS OK's arbitration opt-out from NLRA

Neil Gorsuch and Ruth Bader Ginsburg Clash Over Federal Labor Law and the 'Specter' of Lochner v. New York - Hit & Run : - Damon Root:

May 21, 2018 - "'Should employees and employers be allowed to agree that any disputes between them will resolve through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?'

"That's how Supreme Court Justice Neil Gorsuch summarized the dispute at the heart of today's 5-4 ruling in Epic Systems Corporation v. Lewis. Writing for a sharply divided Court, Gorsuch held that employees and employers have the legal right to make employment contracts that include one-on-one arbitration ... joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito....

"Under the Federal Arbitration Act of 1925 (FAA), arbitration agreements made between employers and employees 'shall be valid, irrevocable, and enforceable' by the courts. Under the National Labor Relations Act of 1935 (NLRA), employees have the right to form and join labor unions and 'to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.' In other words, if a labor contract that includes an individual arbitration agreement is valid under the FAA, does it become invalid when the NLRA is factored in?

"Justice Gorsuch thought not. 'In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms — including terms providing for individualized proceedings,' he wrote. 'Nor can we agree with the employees' suggestion that the [NLRB] offers a conflicting command. It is this Court's duty to interpret Congress's statutes as a harmonious whole rather than at war with one another.'

"Writing in dissent, Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, offered a very different view. 'Enacted later in time, the NLRA should qualify as "an implied repeal" of the FAA, to the extent of any genuine conflict'....

"Ginsburg then accused Gorsuch of seeking to resurrect the Supreme Court's pre-New Deal 'Lochner-era contractual "liberty" decisions.' Lochner refers to Lochner v. New York, the 1905 Supreme Court ruling which invalidated a state economic regulation on the grounds that it served no legitimate public health or safety purpose.....

"In his majority opinion, Gorsuch responded directly to this critique. According to Ginsburg's dissent, he observed, 'today's decision ushers us back to the Lochner era when this Court regularly overrode legislative judgments.' Yet as Gorsuch retorted, 'instead of overriding Congress's policy judgments, today's decision seeks to honor them. This much the dissent surely knows.'"

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