Justice Gorsuch's widely condemned decision in Epic Systems v. Morris may prove to be the harbinger of a new era in which the United States Supreme Court takes an extreme anti-labor stance.
As I noted in a previous post, in the 5-4 decision, Justice Gorsuch ruled that an employer may prohibit employees from joining together in class actions against the employer. The decision also held that employers may require employees to take any dispute to arbitration in which “neutral” arbitrators will rule on the merits on an employee’s claim. Employers who force employees to accept these conditions can get away with stealing small amounts of wages from all their employees because no individual employee would be willing to pay attorney's fees and costs that exceed their recovery. In her dissent, Justice Ginsberg noted that employees at one of the companies would likely have to spend $200,000.00 to recover only $1,867.02 in overtime pay and an equivalent amount in liquidated damages.
Justice Gorsuch's decision is predicated upon the absurd notion that there is equal bargaining power between employers and employees. The reality is quite different. In the case of Epic Systems, employees were told via e-mail that they had to agree to arbitrate any disputes with the employer and give up the right to pursue class actions. Anyone who continued to work at the company after receiving the e-mail were deemed to have accepted the agreement.
Approximately 23 percent of all non unionized employees are subject to class action waivers and mandatory arbitration agreements. That is likely to change, and not for the better. President Trump's most ardent supporters will suffer because of this ruling.