Melissa Greenberg is a student at Harvard Law School.
This post is part of OnLabor’s continuing analysis of National Labor Relations Board v. Murphy Oil USA.
Susan Fowler, whose blog post publicized the sexist workplace culture at Uber, filed an amicus brief in support of employees in the consolidated cases of Murphy Oil USA, Epic Systems and Ernst and Young before the Supreme Court. The full brief is available here.
The brief uses Uber to illustrate why companies might opt to include class action waivers in arbitration agreements. Fowler argues that companies do not need “class action waivers to resolve disputes ‘cheaply or quickly.’” Instead, employers “require class actions waivers to limit or eliminate the legal risk associated with systemic—and potentially or certainly illegal—employment practices.”
Fowler contends that “[t]he right to litigate collectively is particularly important in the 21st century in that such litigation is the most readily available means for modern day workers to act in concert to improve their working conditions.” She maintains that “[m]uch of the modern workforce cannot reasonably engage in the ‘traditional’ concerted activity of striking or picketing.”
She then describes the important role of class actions in allowing workers to address workplace violations. The brief continues:
Collective litigation — when meritorious — usually results in settlement negotiations (or bargaining), a ‘collective’ settlement agreement, an improvement in working conditions, and a reduction of industrial strife. Without the right to collective litigation, there will be more systemic employment law violations, less effective ways to remedy them, and the balance between companies (i.e., capital) and talent (i.e., labor) will shift firmly in favor of capital.
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November 24
Labor leaders criticize tariffs; White House cancels jobs report; and student organizers launch chaperone program for noncitizens.
November 23
Workers at the Southeastern Pennsylvania Transportation Authority vote to authorize a strike; Washington State legislators consider a bill empowering public employees to bargain over workplace AI implementation; and University of California workers engage in a two-day strike.
November 21
The “Big Three” record labels make a deal with an AI music streaming startup; 30 stores join the now week-old Starbucks Workers United strike; and the Mine Safety and Health Administration draws scrutiny over a recent worker death.
November 20
Law professors file brief in Slaughter; New York appeals court hears arguments about blog post firing; Senate committee delays consideration of NLRB nominee.
November 19
A federal judge blocks the Trump administration’s efforts to cancel the collective bargaining rights of workers at the U.S. Agency for Global Media; Representative Jared Golden secures 218 signatures for a bill that would repeal a Trump administration executive order stripping federal workers of their collective bargaining rights; and Dallas residents sue the City of Dallas in hopes of declaring hundreds of ordinances that ban bias against LGBTQ+ individuals void.
November 18
A federal judge pressed DOJ lawyers to define “illegal” DEI programs; Peco Foods prevails in ERISA challenge over 401(k) forfeitures; D.C. court restores collective bargaining rights for Voice of America workers; Rep. Jared Golden secures House vote on restoring federal workers' union rights.