On October 28, David Rosenfeld filed a charge with the NLRB against Hobby Lobby on behalf of The Committee to Preserve the Religious Right to Organize. The charge alleges that “Within the last six months the above named employer has maintained policies in a Mutual Arbitration Agreement which violate[] the rights of employees to organize and to engage in other concerted activity for mutual aid or protection. These policies interfere with their religious right to have a Union which is protected by the federal law including the National Labor Relations Act and the Religious Freedom Restoration Act.”


The theory of this unfair labor practice charge is that employer policies limiting the right of employees to engage in concerted activities for mutual aid and protection violate employees’ NLRA section 7 rights and also their rights to free exercise of religion. While the section 7 theory is familiar, the freedom of religion theory is novel, but it may be plausible. The major world religions celebrate the spiritual significance of work and communitarian values. It appears from the charge that Hobby Lobby’s policy purports to require employees to use the corporate dispute resolution system rather than collective action to challenge unfair working conditions, and employees believe that compliance with the employer’s policy violates their religion.  First Amendment jurisprudence has not given religious people the right to challenge the enforcement of neutral laws of general applicability even where the laws restrict their ability to engage in conduct they believe to be required or encouraged by their religion. And the Title VII prohibition on religious discrimination likewise offers employees little protection against being required to adhere to neutral employer policies.

But the Religious Freedom Restoration Act, the Supreme Court said in its recent Hobby Lobby decision, amends all federal statutes—including, presumably, the NLRA—in this way: federal statutes that substantially burden the free exercise of religion may be enforced only if the statute is narrowly tailored to serve a compelling government interest. So, if Hobby Lobby says its Mutual Arbitration Agreement is enforceable under the Federal Arbitration Act and that the FAA trumps the NLRA’s protections for concerted activity, employees can argue that any interpretation of the FAA that substantially burdens their religious freedom to organize must be narrowly tailored to serve a compelling governmental interest.  It’s not clear whether the government has a compelling interest in allowing employers to require employees to waive their religiously inspired rights to organize.


Catherine Fisk is the Chancellor’s Professor of Law at University of California, Irvine.