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Supreme Court Breaks Ground With Workers' Rights Ruling


The Supreme Court ruling on employee rights has shifted the legal position of workers at all levels. It is the latest of a string of such decisions over the past couple of decades. This time around, a five-justice majority of conservative justices said yesterday that employers may set the following condition of employment. Workers can be barred from joining class action suits over wages and working conditions. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: Suffice to say that over the last 25 years, the court's conservative justices have transformed the 1925 federal arbitration law into a strong federal statement favoring arbitration over litigation. The conservative majority's current reading of the 1925 law allows companies to require their employees to give up their right to go to court as a condition of employment. In place of the right to go to court is arbitration on a one-on-one basis, the employee versus the company. And yesterday the Supreme Court said that workers cannot skirt these limits by bringing a class action in court. Consumers, too, can be required to arbitrate instead of suing. And, like workers, consumers are on their own if they can find a lawyer willing to represent them. That said, there are serious advocates of arbitration who note that when it's done fairly and openly, it's faster, more efficient and works well for employees, employers and consumers. Ted Boutrous has litigated lots of these cases for business in arbitration proceedings, as well as courts.

TED BOUTROUS: They're both good forums if they're operated in a fair way.

TOTENBERG: Of course, there's nothing that requires fairness or disclosure in federal law. But some states, like California, do require that outcomes and data be disclosed. A four-year study of California data from 2003 to 2007 analyzed nearly 4,000 arbitration cases. It found that in arbitration, the employee win rate was substantially lower than the win rate for cases that went to trial. In cases where the employee won, the award rate was also substantially lower in arbitration cases, but the arbitration process was much faster at resolving disputes. More recent statistics come from Yale law professor Judith Resnik, who studied nationwide data provided by the American Arbitration Association for AT&T's arbitration of consumer complaints. Between 2009 and 2017, says Resnik, AT&T had between 85 million and 140 million customers, but only 60 of them, 60, availed themselves of the arbitration system to resolve disputes.

JUDITH RESNIK: If it were better, you'd think there would be good evidence that lots of people use it. And one of the things that we find by looking at data is that, actually, employees and consumers hardly ever use arbitration 'cause it's really hard to do it alone. And that's going to get me to hashtag #MeToo.

TOTENBERG: Indeed, the Supreme Court's arbitration cases in recent years all go in one direction. That suggests strongly that complaints of race, sex and religious discrimination will also be funneled into mandatory arbitration, depriving workers of their right to go to court and let a jury decide. Ron Chapman, who represents businesses in labor management disputes, says that yesterday's Supreme Court decision likely has that result.

RON CHAPMAN: It gives employers the green light to eliminate their single largest employment law risk with the stroke of a pen.

TOTENBERG: No longer, he says, will companies have to settle cases for fear of what a jury might decide. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

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