October 06, 2017

Suing one's employer can be scary enough, but it's even scarier doing it alone.

Many employers are increasingly requiring workers to sign agreements requiring them to resolve workplace disputes about anything from harassment to discrimination to wage theft through individual arbitration. In other words, the language does not permit them to join forces with colleagues who might have similar complaints.

Whether such prohibitions on collective arbitration are legal is at issue in a trio of cases heard by the Supreme Court this week. With Trump-appointed Justice Neil Gorsuch on the bench, many experts say a ruling against the workers in these cases could result in massive changes in how nearly all workplace disputes will be resolved, and how labor laws are enforced.

To understand what this means from the perspective of workers, consider the case against Sterling Jewelers, which operates the Jared, Kay and Zales brands.

Nearly a decade ago, 15 women who worked for Sterling started complaining that they'd been denied pay and promotions given to male counterparts. At the time, they weren't aware of each other's complaints, because at the time of their hiring, they'd all signed paperwork agreeing such complaints could only be heard in private arbitration.

"Most of them had no way of knowing that the others had similar disputes, because that was all kept confidential" in the arbitration process, says Joe Sellers, the women's attorney.

A key turning point in that case, he says, came when the women were permitted to consolidate their case into a class action. They were able to do so because their employment agreements did not explicitly prevent them from joining forces. That meant they could pool resources, hire experts and retain attorneys they couldn't have secured on their own.

Their class-action case now covers 69,000 current and former female Sterling employees, and will be heard next spring. Sellers says if the Supreme Court allows employers to block workers from collectively arbitrating, it would hurt clients like his trying to bring claims in the future.

"They will have no benefit of being able to work together, to collect evidence together, see that there's evidence of a pattern of conduct, which was very important to them in being able to prove their claims, and in leading a number of them to realize they were not alone," Sellers says. "Without it, I think many of them would have simply abandoned their claims because it was either too risky or too expensive or too hard."

Employment arbitration agreements are similar in nature to the fine-print consumer arbitration agreements found in anything from credit card to cellphone contracts, which effectively waive consumers' rights to bring claims to court. After the Supreme Court upheld those arbitration agreements in 2011 and in a subsequent case, employers started adding similar language in employment agreements.

The full article and interview can be accessed here.