The Supreme Court, as you may have read, gave its opinion today on Epic Systems Corp. v. Lewis and, in a 5-4 split, decided to uphold forced arbitration agreements that preclude employees from pursuing class-action lawsuits against their bosses in court. Neil Gorsuch penned the majority opinion, so join me in opening a window and shouting “fuuuuuuuuuck yooooouuu Neiiiiiill” four or five times, or until you pass out. Whichever feels better.
Essentially the case weighed the Federal Arbitration Act against the employee rights-focused National Labor Relations Act—two pieces of legislation nearing their 100th birthdays. The former won, and the meaning of that victory was deftly put by Justice Ginsberg in her dissenting opinion:
the inevitable result of today’s decision will be the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers.
It’s a dreadful blow to all workers regardless of their grievance. A even though the NLRA protections do not apply to contractors, the ruling has brought a swift and sorry end to a tactic popular among those engaged in the gig economy.
“The effect of today’s decision will be to end misclassification class actions, for Gig Economy workers and for everyone else,” Larry Peluso, an attorney who filed one such suit on behalf of Lyft drivers less than two weeks ago, told Gizmodo via email. Employees and wrongfully-categorized “contractors” are in the same boat. “This decision lays the final stone in an almost impenetrable barrier to group action to redress all unlawful employer practices, whether in court or in private arbitration,” he wrote, “the class action aspect of all these cases cannot proceed.”
Shannon Liss-Riordan, an attorney famous for her representation of Uber drivers, explained the grim future of redress in this space: “Gig workers will need to sign up with a lawyer to do an individual arbitration. There are fewer lawyers who will be willing and able to handle individual arbitrations for a lot of workers.”
Not only are there fewer firms willing to do the work, but according to employment lawyer Michael Subit, it’s often prohibitively expensive. “If you’re a low-paid worker, the cost of arbitration will most of the time outweigh any potential recovery,” he told Gizmodo by phone. “For a low-wage worker a thousand dollars or a few thousand dollars is a significant claim, but not in the context of [the] high cost of the legal system.” He predicts the outcome of the SCOTUS decision will be, “fewer cases brought, less enforcement, and more examples of people simply not being paid what the law says they should.”
“The Supreme Court’s decision acknowledged that this result might not be the best policy but left it to Congress to make the decision to change it if it chooses,” Liss-Riordan added. And maybe a Congress in the future will, but almost certainly that change will not come with this Congress, or with this president.
Now gig workers and their legal representation are left to come up with new strategies.