"It is the result," she says, "of take-it-or-leave-it labor contracts harking back to the type called 'yellow dog,' and of the readiness of this Court to enforce those unbargained-for agreements. The [Federal Arbitration Act] demands no such suppression for the right of workers to take concerted action for their 'mutual aid or protection.'"This is a big win for management — Epic Systems, Inc. v. Lewis.
Concern of dissent is that individual claims tend to be small, so that it's not necessarily worth the expense to pursue individually, but now they can't pursue together either.
Justice Ginsburg is now reading from her dissenting opinion. This is a relatively rare and significant move.
ADDED: I'll excerpt this from the majority opinion:
[The employees] don’t suggest that their arbitration agreements were extracted, say, by an act of fraud or duress or in some other unconscionable way that would render any contract unenforceable. Instead, they object to their agreements precisely because they require individualized arbitration proceedings instead of class or collective ones. And by attacking (only) the individualized nature of the arbitration proceedings, the employees’ argument seeks to interfere with one of arbitration’s fundamental attributes.
पोस्ट्स
७१ टिप्पण्या:
Two parties can't acquire more rights against a third party by joining forces than they had originally individually, is a rule of law principle.
In particular a union can't force an employer to negotiate with them.
Fix that mistake and the subsequent mistakes fall away.
Justice Ginsburg is now reading from her dissenting opinion
didn't she die a Long Time Ago?
they allow reanimated corpses to read dissenting opinions now?
Justice Ginsburg writes for the dissenters (joined by Breyer, Sotomayor, and Kagan).
As predictable as the sun coming up in the east.
So the majority is saying that if you sign a contract that contains certain terms, because on the whole you believe the benefits ( such as employment ) outweigh the costs, then you actually have to live with the terms of the contract that you signed?
Madness, I tell you! Absolute Madness!
"In particular a union can't force an employer to negotiate with them."
Sure they can...they've done it!
You mean that changes are going to have to come democratically instead of just ordered by the courts in clear violation of the democratically produced text? Fascists!
Tell me the first time RGB votes in an unpredictable manner. Oh wait, I believe she joined in with the unanimous finding that 2A was an individual right.
I believe in baptism! I've seen it done!
"In an opinion by Justice Gorsuch, it says the text if the federal Arbitration Act is clear and the National Labor Relations Board wrongly found a way to avoid it."
Paging James Comey re: Hillary emails.
I think that if Democrats are going to get serious about changing 2A, they are going have to give it up as a partisan cudgel, and stop demanding that those of us on the right who are sympatheti, buy the whole fascist/socialist belief in the absolute supremacy of untrammeled collective rights and their denial of individual liberty. It's too high a price to pay for a possible drop in the murder rate by two per hundred thousand to achieve European levels.
Why the focus on the dissent?
Seems like no one commenting on this decision knows what case is about. Interesting because us government argued both sides.
but now they can't pursue together either
The group is everything to these jerks. The individuals needs are nothing.
It's a statutory interpretation case.
Fill us in readering! What is your take? Here's your chance!
That's pretty obvious, readering, what is your point?
FORCE. What leftists eat for breakfast. In unison.
readering: "It's a statutory interpretation case."
LOL
Heavy man. Very heavy.
And abiding that duty here leads to an unmistakable conclusion.
Interesting use of "abiding." Feels like showing off.
Argument analysis: An epic day for employers in arbitration case?
A little more background for anyone interested.
Senator Ginsburg loses another policy battle.
If the rumors about Kennedy retiring are true, then we are just a Ginsberg slip in the shower or happy strokeout away from Trump getting 3 Surpreme Court appointments in just his first time.
Plus we are a scan 10 days away from Arizona being able to have the Governor appoint an actual Republican in the Senate once McCain shakes loose from the mortal coil.
Trump is a liar, I will never get tired of the winning.
I would suggest that the ox gored here belongs to the class action lawyers.
In the case of lives deemed unworthy versus Planned Parenthood representing narcissistic women and men and interested Party....
Babies, unite!
Erections have consequences as every mother knows. In this case, very bad consequences for workers. Gorsuch is another simian plant on the U.S. Supreme Court by a retarded, reactionary, retrograde and retrogressive butthead of a president. Trump is the most butt-hurt president in history and belongs in a zoo in a slimy, swamp place.
Poor trump it.
Lost in a world he/she does not understand.
"Trump ... belongs in a zoo in a slimy, swamp place."
Yes, and that's exactly where we have put him. And he's going to be there for a while.
From IIB's SCOTUS Blog link, garnering the to-and-fro from oral argument:
"Clement is not likely to get the votes of any of the four more liberal justices. He doesn’t need those votes, though, if he can garner the votes of the court’s five more conservative justices."
Garner is as garner does.
Trumpit said...
Erections have consequences
No shit!
What has Trumpit got against erections?!
A democracy cannot long survive without free erections.
The money is with the employers and the employers spend big on both parties. It would be easy to ban arbitration of employment claims but Congress never did it. Actually, Congress could just get rid of arbitration.
But the Dems need money too. And the plaintiffs employment lawyers don’t give them as much as Woke Crony Companies.
Neal Katyal, a good Democrat and Obama’s deputy solicitor general, represented the Employers. Woke Dude who likes money just like Obama. The money is with the Woke Companies of Silicon Valley, Seattle, and Wall Street, and the Universities. What they want, the Multi-Millionaire Woke Dems will give them.
Katyal clerked for Breyer. Getting Paid is what it's about. And you can feel good about it when you are Woke. You aren’t a selfish, greedy scumbag like those GOP guys.
Woke Crony Companies
Epic Systems is as woke as they come. Ensconced in hilly Dane County, WI. It's a woke leftist's amusement park and people zoo all wrapped up in a roadside attraction: https://www.epic.com/visiting
The Federal Arbitration Act has been around since 1925
The National Labor Relations Act has been around since 1935
I'm always dubious about courts finding new rights/limitations in longstanding laws. I guess one question I have is has something changed about the way companies are writing arbitration clauses in their employment contracts? If so, then maybe up until recently everyone understood that arbitration clauses could not be used that way ( due to the NLRA ) and as such, they still should not be allowed. On the other hand, if such arbitration clauses have a reasonably long history, then we should not be outlawing them now just because some lawyer thought up a novel interpretation of the NLRA.
So does anyone know how long companies have been using such arbitration clauses in their employment contracts?
One might suspect that in a system of individual arbitration, the records of previous arbitrations could be compiled to determine an average of such arbitration outcomes, within a statistical variation. Should any individual arbitration, deciding issues similar to those previously decided, vary well beyond the statistical variation of outcomes of those previous cases, then there would be something to take to court, to ask questions about the validity of the arbitration proceedings.
Shorter version: Do the math if you think you're getting screwed in arbitration.
"Shorter version: Do the math if you think you're getting screwed in arbitration"
Most arbitrations are private and therefore records are not compiled. Some industries like FINRA will keep certain limited records and provide limited info about individual arbitrators' past decisions, but nothing like case law reports. It is this privacy that is part of the deal.
About the only way to overturn an arbitration decision is to have video of a bribe with express quid pro quo.
It seems to me the case was lost by the NLRB and the employees when their counsel got caught in the following problem:
"Representing the NLRB, attorney Richard Griffin spent much of his 20 minutes hammering out exactly what kinds of collective action are protected under the NLRA. And several justices seemed puzzled after Roberts asked Griffin to weigh in on a hypothetical agreement that required an employee to arbitrate any work-related disputes, in an arbitration forum that would allow collective arbitration only when there are at least 50 employees joining the arbitration. Griffin told the chief justice that such an agreement would not run afoul of the NLRA, because the restriction on collective proceedings would come from the rules of the forum, rather than the agreement itself.
Justice Samuel Alito tested Griffin some more, asking him whether his answer would change if the rules of the arbitration forum barred class arbitration outright. When Griffin indicated that it would not, Alito seemed to think that Griffin was trying to draw a distinction without a difference. “You haven’t achieved very much,” Alito told Griffin."
He tried to amend his statement later, but the damage was done. Maybe Kennedy was always unreachable, but he was surely lost after this exchange.
I think the fundamental problem is this- most workplace issues are individual issues, not collective ones. If I break my ankle on the job, it makes no sense to allow 100 of my fellow workers to join me in an arbitration complaint- I am still the only one who deserves compensation, right?
Short description of the holding:
Majority - the law is clear. If it needs changing, that is up to Congress.
Minority - the law is clear. If it needs changing, that is up to Congress.
The difference is in what each sides think is clear. The majority says "how the laws were interpreted for over 70 years." The minority says "how Obama interpreted the laws."
"Justice Ginsburg writes for the dissenters (joined by Breyer, Sotomayor, and Kagan)."
It's sad, but that's all I needed to know to be sure that I'm happy with this decision. I doubt that I would ever agree with any controversial position which that particular waddle agree on.
I'll be over here with my eyes glazed over... agreeing with what bagoh20 said.
-sw
"Trump is the most butt-hurt president in history and belongs in a zoo in a slimy, swamp place"
The irony of that broadly supported belief is incredible to watch.
Yancey Ward said...
I think the fundamental problem is this- most workplace issues are individual issues, not collective ones.
I suspect there are plenty of cases where the company systematically screws over employees in some relatively minor fashion. For example, skipping their scheduled ( and contractually agreed upon ) 15 minute break. If the company did this to just one person, then it makes sense to treat it as an individual issue. If they are doing it to all employees, then it makes sense to address it collectively. ( Note that while that makes sense, I'm not saying the law requires this )
Ignorance is Bliss,
But then it becomes an issue on the next contract negotiation, which is collective if you are unionized.
Yancey Ward said...
But then it becomes an issue on the next contract negotiation, which is collective if you are unionized.
I suspect the decline in private-sector unions is part of the reason this is coming up now, rather than 40-50 years ago.
Never forget - not even for a minute - the rulings SCOTUS would be putting out if the vile, corrupt bitch would've won in 2016.
I can put up with a lot of what Trump does or does not do when I consider the alternative.
Trumpit: "Hairy beasts like you are the reason the cuntry is stuck with Trump."
He can shave whenever he wants.
However, you will always be a knucklehead.
Hillary Clinton is not vile and corrupt? How much money did her foundation raise for Haitian relief, and how much was actually spent in Haiti?
The only reason you support Hillary is because you hate poor black people.
Perhaps I am too cynical, but isn't the main reason Dems like big class action lawsuits is to placate the plaintiff bar? You know those settlements where you get SW drink tickets and they get hard cash?
"And by attacking (only) the individualized nature of the arbitration proceedings, the employees’ argument seeks to interfere with one of arbitration’s fundamental attributes."
With the Liberals on the Court - the politics just keep on oozing. ".....Once wide coercive powers are given to government agencies [courts]…such powers cannot be effectively controlled.” - F.A. Hayek
@Ignorance is Bliss:
The idea of class arbitration has only recently come into vogue. It’s different than collective bargaining agreements involving labor and management, or collective actions under the FLSA for wage and hour issues or state law wage and hour class actions.
By the way, agreements that do not involve interstate commerce may not be covered by the FAA.
Lucien-
Thanks for the info.
You just wanted to say, "vile, corrupt bitch" because you're a misogynist.
OK. Sure. I'm a racist, too.
What else you got?
The three worst employment practices by employers are adhesion contracts with compulsory non-compete clauses, arbitration and drug-screening. For obvious reasons, a job applicant can't put on his resume that he won't submit to any of that. While I know that Facebook, Google, Apple, Microsoft and others in my industry don't require such, there's no decent way to restrict your general job searches to only those companies who don't.
What we need (and maybe I should start it?) is monster.com-type website for job seekers (no employers need apply!) that provides a list of those "bad"companies in order to save us all time and effort and maybe even provide adhesion contracts for the employers to sign that favor employees. Unions, if their leadership weren't so self-serving, would have done this decades ago.
"they allow reanimated corpses to read dissenting opinions now?"
Weekend at Ruthie's!
Isn't this more about contract enforcement than organized labor?
The three worst employment practices by employers are adhesion contracts with compulsory non-compete clauses, arbitration and drug-screening.
Sounds like people should get together and change the law democratically!
You just wanted to say, "vile, corrupt bitch" because you're a misogynist. Go to hell!
I won’t cop to that charge, I think her husband is even more vile and just as corrupt. My question is why did the Democrats run this pair? That’s why the “cuntry” is stuck with Trump.
TIV: "My question is why did the Democrats run this pair?"
The Democrats didn't run this pair.
This pair simply did what all other lefty leaders do: consolidate power and control the levers of power to ensure their victories.
They know, as all lefty leaders do, that their base voters are sheep and will always accept whatever directions they are given. That's the single most important and clarifying characteristic of left-wingers.
After losing to Mr Identity Politics Spymaster Nobel, Hillary took no chances and completely hacked her party's nomination process.
She then worked with obama to hack our democratic processes to spy on political opponents and utilize East German tactics against Trump.
But she is so astonishingly horrible, corrupt and unlikeable, she still lost.
She is still calling the shots because her oppo research firms (CrowdStrike and FusionGPS) are probably still in possession of many illegal FISA 702 program raw intelligence intercepts that were run since Comey and gang gave those organizations full access to the program. God only knows what details they picked up about potential dem and republican rivals.
It's Craig Livingstone/Raw FBI Background Check Files all over again, and on steroids.
The same processes that led the government to become so large, unaccountable, removed from voters and accountable only to moneyed interests the right-wing court is now unleashing upon America's employees.
Isn't this more about contract enforcement than organized labor?
It's about litigation being prohibitively expensive for any Joe Schmo worker to pursue when the pockets of the corporation that screwed him over are deeper than the oceans and can pay off armies of lawyers to lock him out of just resolution until the day he dies. This is about courts making contract arbitration being of the rich, by the rich, and for the rich - just the way Republicans always like to have things.
What we need (and maybe I should start it?) is monster.com-type website for job seekers who are druggies.
FIFY
I see Ritmo woke up.
The case has nothing to do with unions and little to do with the National Labor Relations Act, except that clever lawyers figured out a intellectually credible argument that the NLRA prohibited class/collective action waivers.
To Ginsburg and others who argue claims will not now be made, that is a mostly phony argument because the applicable statutes typically include an award of attorney fees for the prevailing plaintiff. However, it creates an even playing field The employees do not have the leverage/coercion of the class/collective action. So it is about contracts and about leverage in litigation.
Garland, of course, would have ruled with the liberals, so this is a case where the 2016 election made a difference.
Gorsuch wrote a very smart opinion. I thought the liberals had a chance to get him on this case, or Kennedy. Kennedy showed little interest in the case
’s about litigation being prohibitively expensive for any Joe Schmo worker to pursue when the pockets of the corporation that screwed him over are deeper than the oceans and can pay off armies of lawyers to lock him out of just resolution until the day he dies. This is about courts making contract arbitration being of the rich, by the rich, and for the rich - just the way Republicans always like to have things
Maybe you could write your Congressman to fix the actual law, rather than having “justices” who will never face an election, and have jobs for life, make our laws? Is that too much to ask?
Better to just have a judge say the law says what you wish it said, but couldn’t get done democratically.
According to Ginsburg, the best reading of applicable federal law in this case is that "employees must have the capacity to act collectively in order to match their employers' clout in setting terms and conditions of employment."
This shows Ginsburg is ruling based on her value judgments/political preferences rather than the law.
Two brushes with Playboy: The Girls of Kokomo feature in 1981 caused a minor scandal and one of the ladies was the second wife of a childhood friend. Unfortunately, I was gone by this time. The second was one of our neighbors in Chicago was the successor illustrator to Alberto Vargas for a while.
Two brushes with Playboy: The Girls of Kokomo feature in 1981 caused a minor scandal and one of the ladies was the second wife of a childhood friend. Unfortunately, I was gone by this time. The second was one of our neighbors in Chicago was the successor illustrator to Alberto Vargas for a while.
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