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.
Daily News & Commentary
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May 19
Schedule F comment period ends this week; Wilcox's reinstatement case is back before D.C. Circuit; NLRB removal protection case runs into jurisdictional problem; NJ locomotive strike ends in success.
May 18
In today’s news and commentary, the DC Circuit lifts a preliminary injunction on Trump’s collective bargaining ban for federal workers; HHS, DOL and Treasury pause a 2024 mental health parity regulation; and NJ Transit workers continue into the third day of a historic strike. In a 2-1 decision issued on Friday, the D.C. Circuit overturned […]
May 16
Supreme Court hears a case about universal injunctions; Champion of workers' rights announces run for Colorado Attorney General; Sesame Street is officially union!
May 15
Unions in Colorado urge Governor Polis to sign Senate Bill 5; more than 1200 Starbucks workers go on strike; and IATSE calls on President Trump to reinstate Shira Perlmutter.
May 14
District court upholds NLRB's constitutionality, NY budget caps damage awards, NMB or NLRB jurisdiction for SpaceX?
May 13
In today’s News and Commentary, Trump appeals a court-ordered pause on mass layoffs, the Tenth Circuit sidesteps a ruling on the Board’s remedial powers, and an industry group targets Biden-era NLRB decisions. The Trump administration is asking the US Court of Appeals for the Ninth Circuit to pause a temporary order blocking the administration from continuing […]