Headline Of Article In The Economist Neatly Sums Up The Stakes: "Can Companies Block Employees' Class-Action Lawsuits?"
Steven Mazie has authored an article in the September 20, 2017 online edition of The Economist about the competing interests at stake in the three arbitration cases that SCOTUS will hear on October 2 at the beginning of its new term. S.M. begins by noting Justice Scalia's antipathy towards class-action lawsuits, and the Court's recent "whittling away" of class-action claims.
The key legal issue that SCOTUS must address is whether the promise of the Federal Arbitration Act to make arbitration readily available trumps the promise of the National Labor Relations Act of 1935 to allow employees to engage in "concerted activities" to protect themselves by way of class action lawsuits that are not mentioned in the NLRA. Does the concerted activity that labor laws protect include class action lawsuits?
Noting that the Department of Justice has, with the change in administrations, flipped sides to now support the employer's position, the author concludes, "On top of its promise to tip the balance of power one way or another between employees and employers, Murphy Oil offers a rare example of intrabranch governmental cognitive dissonance."
COMMENT: Mazie points out that a key argument of employers is that the FAA (1925) preceded the NLRA (1935) and the Norris-LaGuardia Act (1932), and because the subsequent labor laws do not explicitly say otherwise, the right to arbitrate should take precedence over the right to file class actions as protected activity. However, as Professor Imre Szalai's history of arbitration in the United States, Outsourcing Justice: The Rise of Modern Arbitration Laws in America (see my 2/19/14 review of the book) suggests, the early proponents of the FAA in the United States viewed arbitration as a tool for resolving disputes among merchants, not as a tool for resolving disputes between employers and individual non-unionized employees.
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