Protecting the right to take away workers’ rights

June 19, 2018

Mukund Rathi unravels the legal reasoning in a recent Supreme Court decision to show how conservative judges stack the deck against workers and their rights.

THE U.S. Supreme Court ruling in Epic Systems Corp. v. Lewis really does epitomize the bourgeois rule of law when it comes to workers: They have the freedom to work for a boss on the boss’s terms, and no other — or starve.

The 5-4 decision announced in May upholds the power of corporations to force individual arbitration on workers.

The Epic case revolved around the conflict between the Federal Arbitration Act (FAA), which requires courts to enforce arbitration agreements, and the National Labor Relations Act (NLRA), which protects workers’ right to organize collectively. The Supreme Court effectively determined that the FAA trumps the NLRA when it comes to arbitration agreements.

According to Justice Neil Gorsuch, Trump’s nominee to the Supreme Court, who wrote the majority opinion in the Epic case, the Court merely “interpret[ed] Congress’ statutes,” and “as a matter of law, the answer is clear.”

The nine justices of the U.S. Supreme Court
The nine justices of the U.S. Supreme Court

This is typical of Gorsuch’s dogmatic allegiance to the legal concepts of “textualism” and “originalism,” which maintain that judges must interpret laws strictly based on the words in their texts, and constitutional issues based on the intentions of those who originally wrote the Constitution more than two centuries ago.

But the Epic decision shows how these concepts can be camouflage to conceal a major political attack behind supposed devotion to the “rule of law.” In reality, Epic v. Lewis wasn’t a case about the technical relationship between statutes, but a concerted elevation of a business-friendly law over a worker-friendly law.

It is the latest in a long line of successful attempts by corporations to close the courthouse doors on the working class.


EPIC V. LEWIS consolidated several cases in which workers sued their employers for various kinds of wage theft. But as part of their employment, the workers had “agreed” to contract clauses waiving their right to go to the courts.

They instead were required to go through arbitration proceedings, where normal judicial rules, including important rights, don’t apply. The clauses also require them to do this individually, preventing them from banding together with fellow workers in the proceedings.

The NLRA, passed in 1935 at the height of the working-class struggles of the 1930s, guarantees to workers “the right to self-organization” and to “engage in other concerted activities for the purpose of...mutual aid or protection.”

The definition of these legally protected “concerted activities” has for decades included collective appeals to legislative bodies, government agencies and lawsuits through the courts. Though an imperfect strategy, class-action lawsuits by workers have been a key method of enforcing civil rights laws.

The FAA, on the other hand, generally requires courts to enforce arbitration agreements, with an exception for “such grounds as exist at law or in equity for the revocation of any contract.”

Basically, arbitration agreements are contracts, and there are rules for making contracts — for example, an agreement can’t be extracted by fraud or under duress. The workers argued that the NLRA protects their right to sue collectively, so arbitration agreements preventing them from doing that must therefore be illegal — and illegal contracts can’t be enforced.

But the majority of justices rejected this argument — for “egregiously wrong” reasons, as Justice Ruth Bader Ginsburg put it in her dissent.

In the majority opinion, Gorsuch wrote that the NLRA isn’t specific enough in protecting the right to collective lawsuits. Remember his devotion to “textualism”: If it isn’t explicitly written into the text of the statute or law, it’s irrelevant.

But Gorsuch completely ignored the decades of case law, cited in Ginsburg’s dissent, which did hold that the NLRA protected workers’ right to sue collectively.

The statute specifies some protections like joining a union and collective bargaining, but it also has a more general clause protecting “concerted activities” for mutual aid. Gorsuch claims that filing a collective lawsuit is “radically different” than the other specified activities, and so Congress didn’t intend to protect this as a right with the general clause.

Gorsuch distinguished the “highly regulated, courtroom-bound ‘activities’ of class and joint litigation” from joining a union and such, which are “things employees ‘just do’ for themselves in the course of exercising their right to free association in the workplace.”

These arbitrary choices of how to define and categorize workers’ actions show how disingenuous the originalist method is.

His choices aren’t actually arbitrary, of course. Gorsuch openly states that “respect for the separation of powers counsels restraint” — that is, judges shouldn’t intervene against a law enacted by some legislative body without good reason.

In this case, Gorsuch is arguing that if the courts strike down employer arbitration agreements because they restrict workers’ rights, judges would be transformed “into policymakers choosing what the law should be.”

But of course, this was after Gorsuch defined the protections of the NLRA out of existence!


THE CONSERVATIVE legal movement that Gorsuch is a part of isn’t actually concerned with excess judicial intervention, as it claims.

Rather, the conservatives are wary of exploited and oppressed people trying to have their day in court.

For example, Gorsuch makes much of the fact that the workers’ side in Epic v. Lewis based its theory of the case on the NLRA, rather than a different statute, the Fair Labor Standards Act (FLSA), which is more specific to wage theft claims.

And for good reason: The FLSA had already been stripped of its protective capacity by the Supreme Court in a previous arbitration agreement case — so of course the workers opted to use the NLRA argument instead.

But Gorsuch finds this insidious — to him, “just stating the theory is enough to raise a judicial eyebrow.”

His opinion cites Supreme Court decisions that rejected previous attempts to uphold statutory protections over arbitration agreements, and says judges “must be alert to new devices and formulas that would achieve much the same result today.”

Thus, Gorsuch doesn’t really hide his preferred outcome, approvingly quoting these cases on how arbitration avoids generating “procedural morass.”

The conservative legal movement backs arbitration agreements because corporations love them.

As David Bliven explained at Socialist Worker, the constitutional right to file a lawsuit becomes a pain for big business when people use it to sue them for corporate wrongdoing. Arbitration gives business a “good chance of opting out of the legal system altogether and misbehaving without reproach,” as a federal judge put it.

As Bliven explained, a “fundamental power shift” takes place going from class-action lawsuits to individual arbitration. In arbitration proceedings, “people must press their claims as isolated individuals against a multibillion-dollar corporation,” Bliven wrote.

These proceedings are run by private entities that set their own rules, with no required legal training for the “judge.” Often, they lack a right of appeal.

For decades, the ruling class has been on a legal spree to force the working class — whether in their capacity as consumers, victims of discrimination and harassment or other forms — to waive its rights through these arbitration agreements, and the courts haven’t stopped them.

In 1992, only 2 percent of nonunionized companies forced arbitration agreements on workers. Today, 54 percent do.


EPIC V. LEWIS shows the distortions of the “freedom” to form binding contracts, but this has also always been central to capitalism.

In contrast to previous class societies, under capitalism, the worker is legally equal to the boss. As Marx puts it, they meet in the market “on the basis of equal rights, with this difference alone, that one is buyer, the other seller; both, therefore, equal in the eyes of the law.” But after they form the contract and leave the market, Marx writes, the boss has “an air of importance, smirking, intent on business; the [worker], timid and holding back.”

In reality, of course, workers and bosses are typically not legally equal. For one, formal systems of inequality, like chattel slavery and apartheid, thrived in capitalist societies for centuries. But even now, workers who are immigrants, have a criminal record and so on are legally subjugated.

Moreover, there are all sorts of extralegal deceptions that bosses use to get an upper hand.

In Epic v. Lewis, for example, Ginsburg questioned whether the arbitration agreements that employees were required to sign were “genuinely bilateral.” She points out that Epic Systems Corp., one of the employers in the case, e-mailed workers the agreements with a clause saying that if they “continued to work at Epic,” they would “be deemed to have accepted the Agreement.”

Gorsuch, of course, simply ignored this.

Ginsburg laments that the workers “thus faced a Hobson’s choice: accept arbitration on their employer’s terms or give up their jobs.”

But even if the workers were clearly presented with the arbitration agreement at the outset of their employment, the choice would still be the same: work under the terms demanded by a new boss or risk being unemployed. As the saying goes, under capitalism, the only thing worse than being exploited is not being exploited.

Even with under formal equality and freedom boasted by the bourgeois rule of law, Marx points out that ultimately, the worker is “bringing his own hide to market and has nothing to expect but — a hiding.”

Ginsburg’s dissenting opinion in Epic v. Lewis, representing the Court’s liberal justices, is biting, but it offers a toothless solution: “Congressional correction of the Court’s elevation of the FAA over workers’ right to act in concert.” Given its record, both in Trump times and before, it’s laughable to expect Congress to fix this problem.

But if individual workers can only expect a hiding from the boss, what’s the solution? To get organized!

The problems identified by Marx confront the individual worker. It is a different story when workers are organized and collectively refuse the boss’s terms. Just as a militant labor movement in the past won the NLRA, so the working class today can push open the courthouse doors once again.

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