The Fight for Labor’s Collective Legal Power Continues

The Fight for Labor’s Collective Legal Power Continues

On March 15th, 1887, Colorado’s Sixth General Assembly recognized Labor Day as a public holiday, making Colorado the second state in the nation to do so. Labor Day is our nation’s tribute to “the contributions workers have made to the strength, prosperity, and well-being of our country.” Although much has been gained over the history of the labor movement , workers  continue to fight for fair wages, updated labor standards and bargaining power. An especially critical issue is coming to a head this October as the Supreme Court prepares to hear arguments on NLRB v. Murphy Oil.

At issue is the role of the National Labor Relations Act (NLRA) to continue to provide workers a collective legal voice. Congress passed the NLRA in 1935 and formally recognized the right of workers to organize and “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Since 1935, collective bargaining has achieved many victories for U.S. workers, both union and non-union members. So much so that in many cases labor union standards are considered industry standards, as employers look to unionized workplaces to set their workers’ compensation and benefits. From increased wages to more vacation time, organized labor has led the way in winning better working conditions and benefits across multiple industries.

Many of the wins for labor were made possible because of the strength that comes with numbers, particularly in the form of class-action lawsuits over workplace conditions and worker rights. In times when pursuing justice for unfair labor practices or compensation was not monetarily feasible on an individual scale, workers have banded together in class-action lawsuits to pursue a collective remedy. Victories in these lawsuits set precedent that has laid the foundation for worker protections and encouraged employers to be more vigilant of their compliance with labor laws.

Collective legal action could quickly become a distant memory for workers, however, if the Supreme Court rules in favor of Murphy Oil in the upcoming NLRB v. Murphy Oil. The Court is being asked to settle a labor battle that has been brewing since the 1980s: that is, the interaction between the Federal Arbitration Act (FAA) and NLRA.

Specifically, the Court will address the question of whether employers can require employees to sign arbitration agreements and thereby waive their right to collective legal action. Corporate interests argue that courts must enforce arbitration agreements under the Federal Arbitration Act, preempting the National Labor Relations Act. Since 1985, the FAA has been limiting the ways in which workers who have been wronged in the workplace can seek justice.

Collective-action litigation is most recently visible among Silicon Valley tech companies, the most recent defendants in high-profile gender discrimination cases. Plaintiffs in those cases are not only seeking justice for the wrong that has been done to them, but for the right for others to collectively have their day in court.

Susan Fowler, an Uber engineer whose blog post about the workplace culture of her former employer led to the ouster of CEO Travis Kalanick, is speaking up for this right and so are her lawyers. In their brief, they claim that companies are resorting to arbitration not to efficiently and cheaply resolve workplace disputes, but rather to skirt accountability for addressing concerns on a wider scale. Michael Rubin, a partner at the law firm Altshuler Berzon and primary author of an amicus brief in support of the NLRB’s claim that class action waivers over employment disputes is an unfair labor practice in violation of the NLRA had this to say on the employers using arbitration as their preferred method of dispute resolution: “No well-counseled employer will forgo the opportunity to both privatize and individualize potential lawsuits.” The results of arbitrations are not made public, so other concerned groups never see how an individual issue was resolved.

The rise of class-action waivers is a major concern for workers seeking to remedy race and gender discrimination or any number of workers’ rights issues.This October, organized  labor will fight  for the right of workers to band together when  labor disputes arise to ensure that workers (current and future)  have a powerful voice in creating more equitable workplaces.

                                                                                                                                                                                – By Jesus Loayza