In law school they teach soon-to-be lawyers a lot of things – civil procedure, constitutional law, torts, probate, contracts – but what they really teach is how to think like a lawyer. In one sense this means judicially reviewing facts for specific issues, and being able to determine what is relevant information and what isn’t, very useful skills that sharpen one’s ability to analyze issues. But in another, deeper, sense thinking like a lawyer also means avoiding “small claims,” looking for defendants with “deep pockets,” and coming to expect high prices for each hour “worked” while simultaneously learning to liberally rack up, but not work hard during, billable hours.
This has myriad results, but one of the most unjust is that potential clients, with valid and enforceable legal claims, often cannot find legal representation. Either their case revolves around too little money, or the costs of the fees charged are simply too high to afford. Many find legal aid and other pro-bono services inadequate to the task of their claims. Nowhere is this issue more apparent than in housing and employment cases. Indeed, wage-theft, a billion dollar money maker for companies who chronically underpay or wholly fail to pay their workers, is one of the most nefarious sort of claims that fall through the cracks in the for-profit legal system. Sometimes one person’s claim may amount to (just) a few thousand dollars or less. While for the worker this amount reflects the precarious plank on which they balance between having a home (or food) or not, this figure does not warrant a lawyer’s second glance – it just isn’t worth their time.
One way to get over this hurdle is to use a time-tested working class tactic – bind together. While one wage-theft claim may not be worth much to your average lawyer – wage theft rarely happens ad hoc. Instead, where one worker is deprived of their usually meager wage, the others at their place of employment or in their industry are also subject to a sort of double-exploitation by their employers. Nowhere does this happen more than in industries with comparatively high amounts of immigrant labor, where the threat of criminal or immigration-based legal process may be just the tool to maintain a system of wage-theft. Employers in industries are often given impunity through silence of precarious workers made so by a slew of unjust, capricious laws, or lackluster legal protections. The legal concept of this form of unionism is the class-action lawsuit. Class action suits allow claimants with similar complaints against a single person or company to unite together in a single suit where one stands in for all those affected. The class-action lawsuit is an important tactic of working-class legal activism.
That was until May 21, 2018.
While that Monday the working class went to work maintaining the economy, the Supreme Court – represented by the Trump-and-unconstitutionally-appointed Justice Neil Gorsuch – went to work destroying a key tool of the workers in Court. A man who’s seat was filled not according to constitutional guidelines (Justice Scalia died during the term of President Obama and the seat was his to fill), announced the court’s decision in the case of Epic Systems v. Lewis. The decision was clear: Most employees no longer have the right to sue their employer collectively. While another, more famous, case, one that threatens to cut the legs out of historically comprised and weak unions takes center stage in the Summer of 2018, it is the Epic case which first undercut the ability for workers to access the legal system in any meaningful way – together.
Like so much in the law, the Court couldn’t just go out and deprive worker’s their rights – that would be too naked an expression of bourgeois will. Instead, the Court made it clear that the workers had themselves, freely of course [add winkyface emoji here], signed agreements upon their employment that forfeited their right to take their employer to Court. The employees had signed an agreement to use arbitration for their disputes. Basically these agreements say that employees agree to not sue their bosses for claims such as wage theft or discrimination, but rather to seek an arbitration proceeding – essentially a private, for-profit court system.
Workers who have now spent a good deal of our adult lives in the neo-liberal and post-recession economy know full well that once offered a job, we will sign just about anything to secure it. Most employees, most regular people, have no idea what the word arbitration means or what rights they were contracting away. But to the Court – these employees had freely contracted with their bosses – without the slightest hint of disparity in power – to deprive themselves of their rights under the constitution if not justice itself. This is America remember. You have rights, but you can – and do – contract them away every time you sign a contract with anyone that offers something socially essential like your phone contract, your social media privacy, or even your right to free speech and association.
But not all was lost, a 2012 NLRB decision held that the kind of arbitration clauses like those in Epic run afoul of the National Labor Relations Act of 1935 because the Federal Arbitration Act (that allows the arbitration system to exist at all) declares arbitration agreements “valid, irrevocable, and enforceable,” except “upon such grounds as exist at law.” The NLRB found that lawsuits designed to collectively enforce workplace rights qualified as “concerted activities for the purpose of … mutual aid or protection” which is among the list of protected activities under the NLRA. So, basically the Federal Arbitration Act isn’t applicable to workers suing their employers together since that is a ground that exists in the NRLA, a law. Pretty simple and straightforward, right?
Not for Neil “I don’t deserve to be here” Gorsuch – made infamous for his decision to uphold the firing of a trucker driver who nearly froze to death in an unheated truck cabin after being told to “to either drag the trailer with its frozen brakes or stay” by his boss. No, for Neil, if the text of the statute doesn’t say it, it isn’t covered or protected. The workers, he says, are trying to use a “catch-all” phrase to capture more than it should:
“But §7 [of the NLRB] focuses on the right to organize unions and bargain collectively. It does not mention class or collective action procedures or even hint at a clear and manifest wish to displace the Arbitration Act. It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935. Because the catchall term “other concerted activities for the purpose of . . . other mutual aid or protection” appears at the end of a detailed list of activities, it should be understood to protect the same kind of things, i.e., things employees do for themselves in the course of exercising their right to free association in the workplace.”
Here Gorsuch is playing the devil’s game. The details are where he loves to find his ultimately dubious and destructive justifications. It is not a secret that laws, especially in a system where judges interpret the words used in legislation in a way to make binding decisions on other judges, contains a fair amount of ambiguity. It is in this ambiguity where judges have the ability to use context, reason, and, yes, ideology to make their stamp on laws that affect millions of people. For Justice Bourgeois, there is no such ambiguity so Neil Gorsuch need not employ the slightest amount of his mental capacity, at least where worker rights are concerned. This was for him, like life, a no-brainer.
The importance of this decision is understandably overblown by its dirty cousin, the Janus case, but its impact will have reverberating effects when the next large group of employees becomes victim to their employers’ most naked assault. It is not a secret that the United States has some of the weakest worker protection and labor laws in the world. What achievements were made during the New Deal – including the creation of the National Labor Relations Board (NLRB), tasked with enforcing protections of unionizing, collective bargaining and other activities described in the National Labor Relations Act of 1935 – were rolled back soon after the war.
To be sure, the Taft-Hartley Act made sector-wide unions, common in Europe, impossible in the States as they would create a “trust” and monopolies we cannot have! From the hey-day of union numbers and power in the late 1950s, constant attacks on unions and their transition into pawns of an increasingly pro-business Democratic Party that culminated in the 1981 Air Traffic Controllers strike where the President of the United States fired all controllers and brought in scabs and presently undertaken under the dubiously named “Right to Work” legislation that has passed a couple dozen states and is before the same Supreme Court that issued the Epic decision, workers are rather obviously up against the wall.
However, though workers have lost an important legal leg on which to stand, the law is only a one means of asserting ones rights and power. While the court represents the law, and the law does govern society, it is not the law as made by or made in the interests of the majority of people and is not representative of our collective will. So though it may be more difficult to join together in the courtroom against our bosses, we must then turn to where we know we still can organize – on the shop floors, the meeting rooms, the union halls, and most importantly, the streets.