Supreme Court Stands in the Way of Workers’ Rights

 

By Sean Lally, Staff Writer

Karla Amezola was hired by Noticias 62 as a news anchor in 2011. During her tenure at the news agency, she enjoyed great success, receiving both an Emmy and a Golden Mike Award. But after Andres Angulo was brought on as Vice President of the News department, Amezola’s life changed for the worst.

Angulo, who had been fired for sexual harassment in the past, began saying inappropriate things to Amezola, and on one occasion, he even unzipped his fly and touched his private parts while the news anchor was present.

Eventually, he began using sex as a bargaining tool, telling Amezola she could attend networking events in exchange for sexual favors. Then, he crossed physical boundaries, groping and kissing the news anchor without her consent.

To top it off, Amezola, who filed a lawsuit in California, may not be able to see her day in court due to a strict interpretation of the 1925 Federal Arbitration Act promulgated by the Supreme Court. Because Amezola signed a contract containing a forced arbitration clause, all claims brought against the company must be overseen by a private arbitrator hired by the company. That means the details of her story could remain hidden from the public, and justice could be deferred indefinitely. With a recent Supreme Court decision, Amezola’s fight can only get tougher.

Supreme Court’s Decision

Doubling down on its interpretation of the FAA, the Supreme Court ruled last month in favor of mandatory arbitration clauses in employment contracts, marking a major victory for companies seeking to escape the burden of class-actions and a loss for workers everywhere. Under the ruling, workers will now have to hire their own attorneys and cover related fees when pursuing claims pertaining to hours and wages.

Moreover, the decision, which was written by the Trump-appointed Justice Neil Gorsuch, will strengthen mandatory arbitration clauses, preventing employees bound by these provisions from banding together in class action lawsuits related to racial discrimination, sexual harassment claims or any other systemic violation of workers’ rights.

#MeToo

Christine Owens , leader of the National Employment Law Project, spoke about some of the troubling implications of the Supreme Court decision (Epic Systems v. Lewis et al.): “The #MeToo movement has shown how crucial it is for workers to be able to voice their concerns together – and how harmful forced arbitration is to women fighting sexual harassment and to anyone challenging workplace misconduct. Forced arbitration means women have to pursue their claims alone, before a private arbitrator hired by the company, with a low likelihood of success and little chance to appeal.”

Path Ahead

As noted by Slate, there are at least two ways forward for workers’ rights advocates: they can either lobby to change the 1925 Federal Arbitration Act, or they can pressure state governments into crafting their own legal protections. Ruth Bader Ginsberg, who wrote the dissenting opinion, remarked on the stakes as they stand: “Congressional correction of the Court’s elevation of the FAA over workers’ rights to act in concert is urgently in order,” she wrote. But since Congress is run by the GOP – a party wholly uninterested in bolstering workers’ rights – the first order of business for advocates is to seek changes at the state level.

Getting Around the FAA

States and localities have a few tools available to them, despite the highest court’s efforts to extend the reach of the FAA to employment contracts and to preempt states from prohibiting “outright the arbitration of a particular type of claim.”

Three Possible Methods

For one, as noted by Slate, local governments can add conditions to government contracts, requiring companies that receive tax-payers’ money to forgo mandatory arbitration clauses.

Secondly, states can force employers to disclose arbitration provisions. This could allow employees to make more informed decisions when seeking a job.

Of course, many employees aren’t in a position to turn down a job, which is why states might also consider passing a law like California’s Private Attorney General Act of 2004. According to PAGA, employees can pursue claims against their employer on behalf of the state if the employer has broken the state’s labor code. Because these claims are technically brought on behalf of the state, the FAA has no jurisdiction.

Suppressing Stories

With the Supreme Court ruling, employees are barred from using their collective power to demand justice. As noted by Justice Ginsberg in her dissent, workers often fear retaliation, especially in claims that involve very little compensation. "[T]here's safety in numbers," wrote Ginsberg. What’s more, people like Amezola will have a hard time finding justice. Because these provisions are often accompanied by non-disclosure agreements, survivors of sexual assault may be barred from telling their stories, and if we’ve learned anything from #MeToo, it’s that stories can go a long way toward effecting change.

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