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An Epic SCOTUS Decision on Class Action Waivers
Posted 05.23.18
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Jonathan A. Segal
Partner
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I am pleased to share my latest article, written for Philadelphia Business Journal, on a recent ruling of the U.S. Supreme Court.

By a 5-4 vote authored by Justice Neil Gorsuch, the U.S. Supreme Court held in Epic Systems Corp. v Lewis that the National Labor Relations Act does not prohibit employers from using arbitration clauses in employment contracts to prevent workers from filing class actions over workplace issues.

Some describe this as a big win for employers. I think it can be described more accurately as an opinion that creates a decision point for employers.

As a purely legal matter, some employers may prefer one class claim before a judge than the specter of a large number of individual claims before an arbitrator.

As an employee and public relations matter, some employers may elect to exclude sexual harassment claims from any ban on class claims for the same reason that some employers are voluntarily taking the position that their mandatory arbitration agreements do not apply to any sexual harassment claims.

As a public policy matter, the decision likely will rejuvenate support for the Senate Bill entitled Ending Forced Arbitration of Sexual Harassment Claims, which has bi-partisan sponsorship.

The bill goes further than its title suggests, preluding mandatory arbitration of any claim of sex discrimination that could be brought under Title VII, such as pay equity claims, even if Title VII is not mentioned.

It should be noted that a bill that restricts mandatory arbitration, if applied only to sexual harassment, may not be as partisan as most of what we see in Washington.

In February, all 50 state attorney generals, Democrats and Republicans alike, signed a letter to Congress demanding that the law be changed to preclude mandatory arbitration of sexual harassment claims.

This would not be first time a Supreme Court decision spurred legislative action. Remember Lilly Ledbetter‘s loss before the high court only to have congress enact a law with her name?

Stay tuned—this story is far from done!

About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .