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Re: Policy Brief No. 37

Policy Summary: On Monday, the Supreme Court handed down a decision in the case Epic Systems Corp. v. Lewis. That case had been consolidated with two other cases but had a similar set of core facts. In the three cases, each company required its employees to waive their right to join in a potential class action lawsuit against the company and mandated that they pursue individually any legal claims that may arise in arbitration proceedings. Employees of the three companies brought a lawsuit against their employers to preserve their right to pursue collective legal action against their employers. The Supreme Court, in an opinion that focused extensively on statutory and contract interpretation rules, decided 5 – 4 in favor of Epic Systems Corporation and the two other employers. LEARN MORE

Analysis: As Justice Ruth Bader Ginsburg said in her dissent, the Court’s decision is “egregiously wrong.” Galen Sherwin of the American Civil Liberties Union’s (ACLU) Women’s Rights Project said in a blog post about the court decision that “arbitration has been criticized as biased in favor of companies and employers, and lacking in the procedural protections afforded by the justice system.” By forcing employees to sign on to only one option to pursue their legal complaints and barring them from one not favorable to their employers, companies are stacking the deck so as to create the likelihood that most employee complaints will be decided in the employer’s favor. Employers favored arbitration over class actions because panelists deciding the case are often chosen by both parties (other lawyers and not always a judge or someone with legal training), the proceedings are held in strict secrecy and often legal precedents are not required to be followed. Employers could manipulate the process to choose who would hear their case, did not have to worry about the hearings being made public and did not have to worry about pesky legal precedents that did not favor them. These protections would be found in a court case but are not required in arbitration proceedings. Employees would have better protections when permitted to band together and confront their employers with their legal claims as a united group. In a class action suit, employees could find strength in numbers instead of confronting a company alone, could share the costs with other co – workers instead of shouldering the financial burden on their own and could be confident in established legal protections by having their claims heard in court (evidentiary rules, binding legal precedent and an unbiased judge and/or a jury of their peers). This case will now upend all of these hard won protections because it forces employees into an unfavorable arbitral process and allows companies to ban workers from what had historically been one of the most useful avenues to have workplace complaints redressed – the class action lawsuit. LEARN MORE, LEARN MORE

Take Action:

American Civil Liberties Union (ACLU) – infopage critical of the Epic Systems Corp. v. Lewis case.

Fair Arbitration Now – non – profit group seeking to lobby Congress to end forced arbitration.

Public Citizen – non – profit group infopage on the dangers of forced arbitration clauses.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org

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