The Supreme Court’s current term will feature a host of cases concerning labor and employment issues. In one case—where arguments have already commenced—the Court will decide on the right of workers to file class-action lawsuits against their employers, and in another, it will rule on whether unions can continue to charge mandatory fees to non-unionized employees that support collective bargaining efforts.
On the first day of its new term, the Supreme Court’s nine justices heard arguments on Ernst & Young LLP v. Morris on the question of whether employers can compel their workers to waive the right to engage in class-action lawsuits against their employer. Employers use these collective-action waivers—which the Economic Policy Institute estimates now affect more than 25 million workers—to limit the formation of collective action lawsuits, which are difficult to fight in court and can be incredibly expensive for companies.
Stephen Morris, an employee of Ernst & Young, filed a class and collective action suit alleging the company had denied him overtime pay; however, his employment agreement stipulated that he must submit to individual arbitration for work-related claims and waived his right to initiate or join collective actions against the company. As a result, Ernst & Young countersued Morris with the goal of dismissing his case and relegating it to arbitration. Ernst & Young won its case in district court but saw that decision reversed by a federal appeals court—which asserted the National Labor Relations Act (NLRA) prohibits such waiver clauses—and thus propelled the case to the Supreme Court.
If upheld, it will enable employers to insulate themselves from employee class action lawsuits. And, in light of the 5-4 split between conservatives and liberals on the current bench, it seems likely—but is very difficult to predict—that the ultimate decision may vindicate employers. The Court is expected to issue its ruling by the end of June.
Additionally, the Supreme Court agreed to hear a case with the potential to reshape organized labor across the nation. The Court will decide if unions can continue to charge employees who benefit from collective bargaining initiatives but are not themselves members of a union in the culmination of a dispute that has brewed for decades.
Mark Janus, a public sector employee in the Illinois Department of Healthcare and Family Services, sued the American Federation of State, County, and Municipal Employees (AFSCME) over fees he is required to pay to the union. Although Janus is not an AFSCME member, he is required to pay them a monthly fee to cover collective bargaining costs since he benefits from their efforts: This premise was established in the 1977 Supreme Court decision in Abood v. Detroit Board of Education. In his lawsuit, however, Janus is asking the Court to overturn its decision in Abood and deem the agency fees that he pays to be illegal.
The Court’s conservative faction has expressed an interest in revisiting the Abood decision for several years and seemed poised to overturn it as recently as last year in the case Friedrichs v. California Teachers Assn, but the unexpected death of Justice Antonin Scalia resulted in a 4-4 deadlock. Today, with the conservative Justice Neil Gorsuch taking Scalia’s place on the bench, the Supreme Court may actually strike down Abood and invalidate agency fees.