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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April 21
Trump's labor secretary resigns; NYC doormen avoid a strike; UNITE HERE files complaint over ICE concerns at FIFA World Cup
April 20
Immigrant truckers file federal lawsuit; NLRB rejects UFCW request to preserve victory; NTEU asks federal judge to review CFPB plan to slash staff.
April 19
Chicago Teachers’ Union reach May Day agreement; New York City doormen win tentative deal; MLBPA fires two more executives.
April 17
Los Angeles teachers reach tentative agreement; labor leaders launch Union Now; and federal unions challenge FLRA power concentration.
April 16
DOD terminates union contracts; building workers in New York authorize a strike; and the American Postal Workers Union launches ads promoting mail-in voting.
April 15
LAUSD school staff reach agreement; EBSA releases deregulatory priorities; Trump nominates third NLRB Republican.