This past Monday, the United States Supreme Court heard arguments on NLRB v. Murphy Oil. This is one of the paramount employment law cases currently pending before the Court this term and has drawn quite a bit of attention.
The case centers on one principal issue: Whether an employment contract which requires employees to forfeit their right to join a class action lawsuit and agree to resolve any disagreement by way of binding arbitration (rather than in trial) is lawful.
As Chief Justice John Roberts pointed out during arguments on Monday, a
ruling in favor of employees in this case would invalidate employment
agreements covering approximately 25 million people. Given the coverage this case has received over the past week (and the potential ramifications of the Court's ruling), I think it is appropriate to make this case a priority for readers.
As always, below are a couple articles that caught my eye this week.
Josh Gerstein at Politico has a great write up from earlier this week on the arguments that played out before the Supreme Court on Monday. The case has garnered intense interest from pro-employer and pro-employee groups from the outset. Employers have suggested these type of employment contracts are lawful, in part because mandatory arbitration provisions have previously been upheld by the Court in a 2013 decision (not necessarily in the employer/employee context but rather in regard to consumers...such as contracts for cell phones, credit cards, rental cars, etc.) Labor advocates have countered and argued that if the Court were to allow these type of employment contracts to exist, it would threaten workers' rights to organize.
Over at Bloomberg Politics, Greg Stohr surmises that Justice Anthony Kennedy could prove to be the crucial swing vote in this case and could ultimately decide the fate of mandatory arbitration provisions in employment contracts. (Of course, a ruling in favor of employers in this case would also recognize the lawfulness of employment contracts that prohibit employees from joining class action lawsuits.)
It is likely (although not certain) that Justices Ruth Bader Ginsburg, Stephen Bryer, Sonia Sotomayor and Elena Kagan will side with employees and Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch will side with employers. Naturally, that leaves Justice Kennedy (a President Ronald Reagan appointee) to break the split among Justices. Based upon the tenor of his questions on Monday, many commentators believe Justice Kennedy will rule in favor of employers in this case. While I caution readers that it is still early and no sure thing, for the time being, it appears that employers have the upper hand.
The day after arguments occurred before the Court, the NLRB's General Counsel Richard Griffin, sent a letter to the Court and stated he gave "a series of inaccurate answers" when questioned by the Justices. When questioned by Chief Justice Roberts on Monday, Griffin acknowledged that it would not be an unfair labor practice for employers to force employees into an arbitration forum that barred group claims involving 50 or fewer employees. (Under this scenario, an employment agreement could require arbitration before XYZ arbitration association which had rules that did not allow class arbitration.) This response to the Chief Justice seemed to undercut Griffin's argument that employees must be allowed to bring group claims even if they signed agreements to take disputes individually to arbitration.
Counsel for the employees, Daniel Ortiz from the University of Virginia, followed Griffin at Monday's arguments and stated he did not agree with the General Counsel's concession. Griffin's letter to the Court the following day indicated that he wished to backtrack on his statements as a result of "misunderstanding the Chief Justice's questions...". I would not necessarily say this will tip things either way, but is somewhat of an unusual development in an already high level case before the Court.
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