August 16, 2017

States, unions and advocacy groups filed briefs Wednesday in a U.S. Supreme Court case that will decide whether employers can make workers give up their rights to take group legal action, urging the justices to agree with the National Labor Relations Board policy that federal labor law bars such deals.
The amici, which include the AFL-CIO, the American Civil Liberties Union and a group of 17 states, argued that Section 7 of the National Labor Relations Act, which guarantees workers’ rights to engage in collective action, blocks employers from requiring that work-related claims be brought in individual arbitration despite the Federal Arbitration Act’s presumption that arbitration agreements are valid.
Joined by worker advocacy groups the National Employment Lawyers Association and the National Employment Law Project, a group of nine of the country’s largest labor unions said Section 7’s guarantee of worker rights to unionize can’t be separated from its guarantee of rights to engage in “other concerted activity,” which they argue includes group legal action.
“Just as an employer cannot deprive its workers of that substantive statutory right by insisting that they agree to arbitrate all workplace disputes instead of picketing, bargaining, striking or engaging in any other form of legally protected collective protest activity, neither can it … requir[e] its workers prospectively to waive their statutory right to improve workplace conditions through collective adjudication," the groups said.
The high court in January granted three petitions for certiorari asking it to review the NLRB’s stance that class action waivers violate NLRA provisions guaranteeing the rights of workers to act collectively, agreeing to settle a debate that has polarized the circuit courts. Proponents of the NLRB’s stance had until Wednesday to file amicus briefs arguing its side.

The civil rights groups are represented by in-house counsel and Joseph Sellers of Cohen Milstein Sellers & Toll PLLC.
The cases are Ernst & Young LLP et al. v. Stephen Morris et al., case number 16-300; NLRB v. Murphy Oil USA Inc., case number 16-307; and Epic Systems Corp. v. Lewis, case number 16-285, before the Supreme Court of the United States.

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