Monday, May 21, 2018

Supremes Uphold Class Action Waivers

On May 21, 2018, the Supreme Court issued its long-awaited decision in Epic Systems v. Lewis, ___U.S.___(May 21, 2018). The issue in the case was simple. The Plaintiff signed an arbitration agreement which stated that he waived the right to bring a class action case. He sought to bring a class and collective action under the FLSA for unpaid overtime. In a 5-4 decision, the Court upheld the validity of class action waivers.

Plaintiff's major claim was the the class action waiver interfered with his right to engage in concerted activity under the NLRA. The Supremes rejected that argument and stated:
A close look at the employees’ best evidence of a potential conflict turns out to reveal no conflict at all. The employees direct our attention to the term “other concerted activities for the purpose of . . . other mutual aid orprotection.” This catchall term, they say, can be read toinclude class and collective legal actions. But the term appears at the end of a detailed list of activities speaking of “self-organization,” “form[ing], join[ing], or assist[ing] labor organizations,” and “bargain[ing] collectively.” 29
U. S. C. §157. And where, as here, a more general term follows more specific terms in a list, the general term is usually understood to “‘embrace only objects similar in nature to those objects enumerated by the preceding specific words.’” Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115 (2001) (discussing ejusdem generis canon); National Assn. of Mfrs. v. Department of Defense, 583 U. S. ___, ___ (2018) (slip op., at 10). All of which suggests that the term “other concerted activities” should, like the terms that precede it, serve to protect things employees “just do” for themselves in the course of exercising their right to free association in the workplace, rather than “the highlyregulated, courtroom-bound ‘activities’ of class and jointlitigation.” Alternative Entertainment, 858 F. 3d, at 414– 415 (Sutton, J., concurring in part and dissenting in part)(emphasis deleted). None of the preceding and more specific terms speaks to the procedures judges or arbitratorsmust apply in disputes that leave the workplace and enter the courtroom or arbitral forum, and there is no textually sound reason to suppose the final catchall term shouldbear such a radically different object than all its predecessors.
Query, whether this language will limit the protections non-union employees, have under the NLRA to engage in concerted activity for mutual aid and protection.

The Discipline Book

Harvey and Eric Randall just updated their wonderful treatise called "The Discipline Book" which is available on Amazon now. https...