Collective Threats: What’s Wrong with Workers’ Rights?


A4E member Steve Piazza is a writer and poet living in Athens, Georgia with his wife and cat. He is a retired educator who advocates for education, workers’ rights and global welfare. Interested in writing for our blog? Get in touch!

Stability in any society requires that its people be gainfully employed in meaningful and lasting work via sensible, sustainable industries. Work is necessary for psychological, emotional and spiritual well-being. A safe and supportive environment is vital to ensuring that workers and business owners can together participate fully in the give-and-take relationship required for a business, and an economy, to thrive. Just as businesses have the leverage to make reasonable demands of their workers, employees ought to have rights to air grievances without the threat of harsh consequences. For decades, because of laws for which many fought, workers have had reason to trust that their concerns would be treated fairly on the merits of their case.

For example, employees could file complaints collectively, both to legitimize a grievance and to share related legal costs. That right is now in jeopardy as the U.S Supreme Court recently ruled 5-4, in Ernst and Young v. Morris, that companies can require that all such grievances be handled by individual arbitration.

Specifically, the Court ruled in favor of three companies (Ernst & Young LLP, Epic Systems Corp. and Murphy Oil USA Inc.) that had been challenged successfully in lower courts by employees who were forced to sign agreements not to join any class-action suits against their respective employers. The Court’s decision focused on two laws, the 1925 Federal Arbitration Act (FAA), which guarantees the judicial process of arbitration to resolve differences, and the 1935 National Labor Relations Act (NLRA), which secures employees’ right to bargain collectively and protects them from abuses by employers.

In effect, the Court based its decision on the belief that NLRA does not trump the objective of the earlier FAA. Justice Neil Gorsuch, writing for the majority, reasoned, “The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum.” In other words, employees who feel that conduct or conditions in the workplace threaten workers are no longer guaranteed the right to band together with their fellow workers to strengthen their case.

Justice Ruth Bader Ginsburg wrote in dissent, “For workers striving to gain from their employers decent terms and conditions of employment, there is strength in numbers.” She accepts that the majority believes section 7 of the NLRA strictly be read “to protect things employees ‘just do’ for themselves,” yet “It is far from apparent why joining hands in litigation would not qualify as ‘things employees just do for themselves.’” Her emphasis on “strength in numbers” is hardly new, but it is even more crucial now as we seem to be witnessing the eroding of workers’ rights.

The ruling creates shaky ground for working people when it comes to sexual harassment, safety concerns, compensation, etc. It also stands as further indication of the political manipulation of the judicial system. Rather than an objective and inalienable right, justice is becoming a mere tool to be tampered with.

Here are some examples of how our system can be manipulated by the powerful:

  • Parties (like the petitioners in this case) can choose to appeal a ruling in districts that seat judges historically friendly to their side of such issues, rather than in the district of an earlier filing that may be perceived as less friendly.
  • Courts can choose to consolidate cases (as the Supreme Court did here) for umbrella decisions, making it easier for activist judges to be farther reaching in their intent.
  • Cases can be deliberately scheduled to benefit from a politically driven delay in the filling of a vacancy on the Supreme Court appointment so that a select judge more likely to rule a particular way can be sworn in after a new, allied president is in office. New executive administrations can undermine relative governing bodies (for example, by using the Solicitor General’s Office to speak for the National Labor Relations Boards and fast-track a hearing before the court) to ensure that favorable testimony and arguments are provided.
  • Mercenary attorneys and bureaucrats can exploit many vulnerabilities (or loopholes) in the process leading up to the Supreme Court hearing a case. Once it does, the rhetoric of its reasoning is carefully crafted to lead to the desired outcome.

Returning to the recent ruling, that an earlier, more specific law was used to override a law designed to be more comprehensive seems arbitrary at best. Furthermore, to resolve a conflict that has such serious implications for the employer–employee relationship using such a slim, biased interpretation harms the success and longevity of any enterprise. Simply put, this is not even smart business.

Georgia is one of 25 “right to work” states, which means that although a business is prohibited from using membership in a union as a condition for employment, it cannot penalize an employee or employees for union participation. What impact the recent ruling will have is yet to be seen, but seeing that employers now have the weight of the higher court behind them to steer plaintiffs toward individual arbitration and away from collective action, the playing field is now imbalanced. Employees face the loss of a fundamental support that has led to improvements in wages, healthcare and other benefits, safer work environments and an end to child labor.

Employers have their rights, but they have no businesses to run if they are not investing in their employees. Both individual and collective protocols have their place, and can save all involved time, money, crucial relationships and even lives.

What can be done? For starters, people can voice displeasure by contacting state and congressional leaders and asking them to review and/or revise legislation that prevents the further erosion of workers’ rights. People need to stay current on candidates up for judicial posts so that they may inform political leaders which individuals they feel have the integrity necessary to uphold fairness in legal matters and procedures and which do not. It is vital for individuals to know their rights as employees and the policies that govern their own workplace. Finally, workers need to know that they are not alone and understand the value of getting involved, such as by joining and/or supporting local organizations that advocate for workers.

Steve Piazza
7/15/2018
Athens for Everyone

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