Conservative Supreme Court rules against labor

In a 5-4 decision today, with voting along political lines, the conservative Supreme Court Justices (including Trump appointee Gorsuch) ruled that workers could not file class-action lawsuits against employers if they signed arbitration clauses in their contracts that waived their right to file such suits in favor of binding arbitration. This is definitely a blow to labor; as Reuters reports:

The justices, in a 5-4 ruling with the court’s conservatives in the majority, endorsed the legality of the growing practice by companies to compel workers to sign arbitration agreements waiving their right to bring class-action claims on various disputes, primarily over wages and hours.

The ruling could apply more broadly to discrimination claims like those raised by women as part of the #MeToo movement raising awareness of sexual harassment in the workplace but the court did not explicitly address that issue.

Craig Becker, a former member of the U.S. National Labor Relations Board and now general counsel of the AFL-CIO union federation, said the decision will have a “chilling effect” on employees coming forward to complain of mistreatment.

“It will cripple enforcement of all the major employment laws,” Becker added.

Growing numbers of employers, alarmed by a rise in class-action claims brought by workers on wage issues, have demanded that their workers sign waivers. Class-action litigation can result in large damages awards by juries and is harder for businesses to fight than cases brought by individual plaintiffs.

Remember, this is about the legality of companies being able to make their employees sign waivers to prevent class-actions, which seems unfair on the face of it.

The split had Gorsuch (Trump’s flak) writing the majority opinion (see it here), joined by Alito, Thomas, Kennedy, and Roberts. As for the liberal Justices (Ginsburg, Kagan, Sotomayor, and Breyer), the New York Times adds this:

Justice Ruth Bader Ginsburg read her dissent from the bench, a sign of profound disagreement. In her written dissent, she called the majority opinion “egregiously wrong.” In her oral statement, she said the upshot of the decision “will be huge under-enforcement of federal and state statutes designed to advance the well being of vulnerable workers.”

Justice Ginsburg called on Congress to address the matter.

Brian T. Fitzpatrick, a law professor at Vanderbilt University who studies arbitrations and class actions, said the ruling was unsurprising in light of earlier Supreme Court decisions. Justice Gorsuch, he added, “appears to have put his cards on the table as firmly in favor of allowing class actions to be stamped out through arbitration agreements.”

As a result, Professor Fitzpatrick said “it is only a matter of time until the most powerful device to hold corporations accountable for their misdeeds is lost altogether.”

Will the working people who voted for Trump, thinking he’d improve their situation, be disenchanted now? Are you kidding? They won’t pay one bit of attention to this decision.

Here’s the opinion of Steven Greenhouse, former labor reporter for the New York Times:

We often ignore the fact that one of the worst things that Trump (and the Republicans) did—something that will affect the country long after Trump is out of the White House—was to unfairly block the appointment of Obama’s nominee Merrick Garland, waiting out the election to then allow a possible Republican president (Trump) the chance to put in his own nominee. That would be the odious Gorsuch.

43 Comments

  1. alexandra Moffat
    Posted May 21, 2018 at 3:49 pm | Permalink

    The democrats should figure out some way to phrase,decribe this decision so it will be clear to voters what it means….and who really made it possible. The Swump
    And Congress needs to repair workers rights, class action rights.
    AND everyone should refuse to sign arbitration contacts but that is hard when you need a job.
    What is the percentage of a population that if uneducated and heedless makes democracy impossible, I wonder. Are we there?

    • Posted May 21, 2018 at 3:55 pm | Permalink

      We’re well past it. We’ve been surviving on the fumes of previous generations.

    • Heather Hastie
      Posted May 21, 2018 at 4:15 pm | Permalink

      This will screw up all those Trump coal miners looking to make representations for their health.

      And the 9/11 responders whose health was damaged – they would be screwed under this law too.

      In NZ workers in jobs dominated by women (mainly care/support workers) and paid poorly as a result have had big wins in court. That will not be possible in the US.

      And how will this decision affect precedent? In NZ, whistleblower legislation came because of a case won by a worker, and the result was applied across government. Will that sort of thing still happen?

      • Posted May 22, 2018 at 4:52 am | Permalink

        This will screw up all those Trump coal miners looking to make representations for their health.

        And the 9/11 responders whose health was damaged – they would be screwed under this law too.

        Only if they have signed contracts with such arbitration clauses in them.

        My feeling is that it any clause in a contract that seeks to restrict either party’s legal rights in this way should itself be explicitly illegal.

        • darrelle
          Posted May 22, 2018 at 8:10 am | Permalink

          If I’m reading this situation correctly that is exactly what the concern is about this ruling. Companies have already been requiring, or pressuring, employees to sign agreements that include arbitration clauses. But due to precedent and existing laws these were typically not considered binding when actually put to the test. With this ruling they now will be.

          In my work, and I’m sure it’s the same in most industries, the contracts I deal with are full of clauses that may or may not be considered binding if actually tested in court. Big companies have legal departments that spend lots of time devising new clauses to make sure that any possible shit flow down hill and that they have the tiniest amount of legal or monetary liability in any imaginable situation that might arise. Small outfits like mine can’t afford to go to court and test such clauses so it doesn’t really matter whether or not they would be found to be binding by a court or not. It’s just a risk we have to manage if we want to do business. It sucks, and it ain’t right, but I don’t know how to change it.

        • Heather Hastie
          Posted May 22, 2018 at 2:38 pm | Permalink

          I agree, and they are in New Zealand and most other democracies. An employment contract that has less than the legal minimum in terms and conditions is illegal.

  2. Posted May 21, 2018 at 3:56 pm | Permalink

    Divide and conquer made law. 😦

  3. Saul Sorrell-Till
    Posted May 21, 2018 at 4:01 pm | Permalink

    Who’d have thought a revolting, tacky old man who builds gold hotels wasn’t a working-class hero? Baffling.

    • Heather Hastie
      Posted May 21, 2018 at 4:17 pm | Permalink

      Well said!

      • Saul Sorrell-Till
        Posted May 21, 2018 at 4:50 pm | Permalink

        I’ll say something else: as far as I can tell, from my many interactions with his online supporters(specifically his online supporters note – I can’t judge the rest), Donald Trump is being held politically aloft by spite.

        Overwhelmingly, exchanges with his fans end up going along the lines of ‘haha, love to see you cry’ or ‘we won libtard’ or ‘Trump made you his bitch’, etc. Their comments never have anything to do with policy, with the economy, with politics in general – they all express a kind of ecstatically malicious glee, the equivalent of the shrimpy kid who now gets to hang around with the school bully and is set on rubbing it in his enemies’ faces.
        They get an intensely vicarious thrill from seeing him metaphorically pissing in liberal faces – he is their avatar, and he says and does exactly what they wish they could say and do to all those ‘liberal elitist intellectual snooty westcoast manhattanite college educated progressive…etc’.
        The suppressed inferiority complex so many of them clearly have about their education and class status is sustaining Trump, because he is lifting them up and representing them at the kind of societal tables that people like them so rarely get to sit at. And he’s not just politely trying to fit in – no, he’s turning the table over, and trying it on with the hostess, and slapping his dick on the furnishings while proving that education and manners are Marxist Deep State hoaxes invented by China so SCREW THEM.

        He’s doing this for his supporters, and every time he humiliates or embarrasses or one-ups or insults or threatens to sue or makes up an asinine nickname about some respected politician/celeb it’s a score for his supporters. No policy decision he makes could change their minds because they’re not interested in policy – they just want him to keep winding up liberals/elites.

        The only way he could ever blow their support is if he were to start ‘reaching out’ to the rest of the country, like people have been expecting him to do for so long now. If he started doing that, if he started behaving with dignity and kindness towards the people who are…unconvinced…by him, then his support would lose interest. Because a significant chunk of their loyalty and support is predicated on spite.

        Condescending? Probably. It’s also true.

        • Randall Schenck
          Posted May 21, 2018 at 4:57 pm | Permalink

          Let us keep it simple then…Just lock him up.

          • Saul Sorrell-Till
            Posted May 21, 2018 at 5:03 pm | Permalink

            The guy’s an astonishingly talented weasel. There’s no way he’ll ever end up in prison, even if he’s guilty.

        • Randy Bessinger
          Posted May 21, 2018 at 5:03 pm | Permalink

          +1 Totally agree. The other thing of note I think is that his supporters think he is a “winner”. How he wins does not matter…lie, steal, cheat..that’s ok in their eyes as long he supports their important issues.

          • Saul Sorrell-Till
            Posted May 21, 2018 at 5:11 pm | Permalink

            True. He’s a poor person’s idea of a rich person…and a loser’s idea of a winner.

          • Ken Kukec
            Posted May 21, 2018 at 6:34 pm | Permalink

            Trump’s main motivating phobia is a morbid fear of being labeled a “loser.” Once you understand that, nearly everything he does makes sense — from his relentlessly claiming credit for other people’s successes, to his abject refusal to accept responsibility or admit error, to his incessant, transparent lying about almost everything.

        • Heather Hastie
          Posted May 21, 2018 at 8:23 pm | Permalink

          I think there’s a lot in what you’ve said.

        • Posted May 21, 2018 at 10:34 pm | Permalink

          Yep.

        • darrelle
          Posted May 22, 2018 at 8:40 am | Permalink

          Well said.

        • Posted May 22, 2018 at 11:00 am | Permalink

          Maybe but I doubt these kind of responses are being made by the bulk of Trump’s supporters. Most are people that don’t follow current events closely or are simply gullible and/or racist. And when I say “racist”, it is not the overt kind but the kind that has them disliking Obama for reasons they can’t quite put their fingers on.

  4. Posted May 21, 2018 at 4:05 pm | Permalink

    I have to think that a lot of decisions Obama made in the last half of 2016 were predicated on the assumption Hillary Clinton would win the election. One lesson that I hope the Dems learn is that they must fight for everything as soon, and as hard, as possible.

  5. Historian
    Posted May 21, 2018 at 4:08 pm | Permalink

    Indeed, the decision is unsurprising taking into consideration the makeup of the Court, which is likely to become even more conservative should one of the aged liberal justices leave it. Yes, also, the people most affected by it, many of whom are undoubtedly Trump supporters, will be oblivious to the decision or not care. In fact, they are oblivious that he has failed to keep his oft made promise to “drain the swamp.”
    the corruption of his administration boggles the mind. Trump is a master at diverting the attention of his cult followers from the real sources of their woes. Fox news serves as his state propaganda organ. The Republican Party is his boot licking servile tool.

    The ability of a charismatic leader to manipulate the masses is nothing new. There is no evidence that Trump is failing at the task. Nor do his supporters care in the least that his attempt to intervene in the workings of the Justice Department is a direct threat to its independence. Democracy is at stake, and his followers couldn’t care because it means nothing to them. All they want is for someone to tell them that their grievances, many of which are figments of their aggrieved minds, are caused by liberals and the invasion of illegal immigrants. As I’ve mentioned before, the “status anxiety” of these people explains a lot. They can’t bear the thought that groups of people they lorded over for centuries have the gall to ask for a fair piece of the pie.

    • Ken Kukec
      Posted May 21, 2018 at 5:12 pm | Permalink

      The Democrats ever get back in power, first thing they need to do is obtain statehood for the District of Columbia and Puerto Rico. The US citizens there are getting screwed by not having representation in congress. (Look what happened to PR with Hurricane Maria.) The Republicans will scream bloody murder, since both new states will be blue — meaning four new Dem senators, plus congressmen, plus electoral votes — but tough shit.

      The GOP’s been pulling their crap for far too long — take-no-prisoners gerrymandering, voter suppression laws, ruthless manipulation of the rules of congress. They play mean, they play dirty, and they play for keeps. Time Democrats did the same.

      • Saul Sorrell-Till
        Posted May 22, 2018 at 8:10 am | Permalink

        +1

      • Posted May 22, 2018 at 1:13 pm | Permalink

        Does it require just a bill in Congress?

        • Ken Kukec
          Posted May 22, 2018 at 3:09 pm | Permalink

          The Constitution isn’t a model of clarity on the topic, but that’s all that’s been required in the past (though, of course, like any other bill, it must be signed by the president, or his veto must be overridden). The territory seeking statehood must first have a referendum demonstrating that its citizens assent to becoming part of the union.

  6. Ken Kukec
    Posted May 21, 2018 at 4:15 pm | Permalink

    How’d Justice Garland vote on this one? … oh … right.

  7. Randall Schenck
    Posted May 21, 2018 at 4:22 pm | Permalink

    Par for the course we can say. Probably decided by the second or third hole I would say for all those corporate golfers out there. The Trump supporters will not be able to figure this out any more than the big tax cut they got this year. It will reduce the work for many lawyers but that is just a sacrifice they will have to make for the good of the one percent.

  8. Mark R.
    Posted May 21, 2018 at 4:25 pm | Permalink

    Not only are corporations people, but now they’re people that cannot be held accountable for their actions. Go America!

  9. Ken Kukec
    Posted May 21, 2018 at 4:37 pm | Permalink

    Shouldn’t come as a surprise to anyone. Republicans been fuckin’ the working class since the days of Warren G. Harding. They’re required to; it’s a plank in their platform, right between “despoil the environment” and “support human-rights abusers.”

    • Neil Wolfe
      Posted May 21, 2018 at 4:42 pm | Permalink

      Carlin was a prophet

      • Randall Schenck
        Posted May 21, 2018 at 5:02 pm | Permalink

        Yes he was. Too bad nobody was listening.

      • Ken Kukec
        Posted May 21, 2018 at 5:17 pm | Permalink

        Wish we had another like him RIGHT NOW!

        • darrelle
          Posted May 22, 2018 at 8:49 am | Permalink

          No one quite like him of course, but there are a few that are carrying the torch. There’s the Comedy Central derived folks like Stephen Colbert, John Oliver and a few others. Lewis Black lays it down pretty good on occasion. Though I’m always worried he’s going to blow a gasket right there on stage.

    • Saul Sorrell-Till
      Posted May 21, 2018 at 4:51 pm | Permalink

      Did Warren G Harding do a lot of regulatin’?

      • Ken Kukec
        Posted May 21, 2018 at 5:33 pm | Permalink

        Harding was too busy, during his year and a half in office, letting his cronies loot the US Treasury to do much regulatin’.

        Plus, as a Republican, it would’ve been his sworn duty to deregulate for the benefit of corporations — see, e.g., Pruitt, Scott, the swamp-monster Trump’s got dismantling the EPA.

        • Saul Sorrell-Till
          Posted May 22, 2018 at 8:09 am | Permalink

          Pologies. It was a crap joke about the rapper Warren G and his song Regulate. I was a big fan when I was a kid. I saw him in concert once. We were one of three other white people there.

          I have actually googled Warren G Harding now so I learned something at least.

          • Ken Kukec
            Posted May 22, 2018 at 9:50 am | Permalink

            Hell, I forgot all about Warren G and “Regulate.” Thanks for reminding me.

  10. Gordon
    Posted May 21, 2018 at 5:39 pm | Permalink

    Not only labour problems I think. I seem to have notices a similar sort of arbitration clause in some google terms recently (sort of stuck out to me as I was aware of the labour case coming up).

    Now they just have to do over the public sector unions and they can rest happy for the year.

  11. Posted May 21, 2018 at 6:17 pm | Permalink

    unfairly block the appointment of Obama’s nominee Merrick Garland, waiting out the election to then allow a possible Republican president (Trump) the chance to put in his own nominee

    I am still astonished that this is even possible. It makes me think that it was designed that way. It’s quite amazing how such happy coincidences and possibilities somehow always end up helping the powerful, or so it seems.

  12. Posted May 22, 2018 at 4:59 am | Permalink

    We often ignore the fact that one of the worst things that Trump (and the Republicans) did—something that will affect the country long after Trump is out of the White House—was to unfairly block the appointment of Obama’s nominee Merrick Garland, waiting out the election to then allow a possible Republican president (Trump) the chance to put in his own nominee.

    To be fair to Trump, he had no part in the action to block Obama’s candidate. That was all the Republican congress prior to the last election. He could, however, have put forward the same candidate once he gained power.

    Anyway, the problems are far worse than having a Republican biased supreme court. The fact that they have the leeway to interpret laws along partizan lines tells us that the laws are badly written.

    • Ken Kukec
      Posted May 22, 2018 at 3:23 pm | Permalink

      Trump publicly urged from the campaign hustings that Mitch McConnell block Garland’s confirmation. He gets a share of the blame.

  13. TJR
    Posted May 22, 2018 at 8:31 am | Permalink

    Rich People Vote To Shaft Poor People.

    In other news, Ian Paisley was not a catholic.


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