U.S. Supreme Court Decision Dismantles Worker’s Rights in Favor of Corporations
By Kate Haverston
Not every human being does the same type of work to get by. But don’t let that distract you from an uncomplicated truth: Workers’ rights are human rights.
In the interest of promoting workers’ rights as human rights, let’s talk in detail about what a recent U.S. Supreme Court ruling means for everyday employed Americans. It’s the culmination of a trio of cases involving the predatory workplace policies of three companies specifically: Epic Systems, Murphy Oil USA and Ernst & Young.
Suppose your job concerned loading 110-degree trucks in the middle of summer and you had lasting consequences from heatstroke. Or that your boss corners you periodically and tries to make a pass at you. Suppose you’ve been working mandatory overtime for the last two months, but your paychecks haven’t reflected the extra time and wages.
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Until this Supreme Court ruling, you could reasonably expect the right to challenge your employer in court for any number of abuses — including wage theft, sexual harassment, unsafe working conditions and a host of other — believe it or not — extremely common sources of harm brought against workers.
To add insult to injury, you’ve probably sat through a meeting or two by now about “employee time theft.” But employer wage theft is by far the more common and damaging crime. Minimum wage violations alone impact 2.4 million workers every year, to the tune of $8 billion, or $3,300 per worker.
The point is this: SCOTUS just sided with corporations and protected their right to escape their moment in court — and the court of public opinion.
Instead, employers have the right to limit their employees to a single type of legal recourse, if you even want to call it that. It’s called “forced arbitration,” and it’s essentially a behind-closed-doors meeting with you, your employer and their overpriced team of legal sharks — shut away from a judge, or a jury of your peers, away from the pesky eyes of the public — to hash out your differences in private.
Forced Arbitration Is Not Justice
Remember, the “differences” here might be nothing more or less than your right to sexual agency in the workplace or your right to your full wages for hours worked. It might also include your legally recognized right to a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
If workers’ rights are human rights, that makes this phrase, taken directly from the General Duty clause of the OSHA Act, one of our primary tools to ensure human beings enjoy decent working conditions. Nobody’s profit margin is so important that we need to imperil human lives unnecessarily. Nobody’s.
And in these times, it’s impossible to understate the implications of forced arbitration as it applies to cases of workplace sexual harassment. Forced arbitration has long been a legislative and regulatory target for Democrats and left-wingers, with, among others, Sen. Kirsten Gillibrand emerging to take up the issue personally. This SCOTUS ruling makes her mission even more urgent:
“When a company has a forced arbitration policy, it means that if a worker is sexually harassed or … assaulted in the workplace, they are not allowed to go to court over it … they have to go into a secret meeting with their employer and try to work out some kind of deal that really only protects the predator. They are forbidden from talking about what happened … expected to keep doing their job as if nothing happened.”
Depending on the rights abuses in question, that’s a bleak precedent indeed for the Supreme Court to hand down to hardworking Americans — who are, after all, supposedly a twinkle in the eye of conservative and liberal politicians alike. Nevertheless, as always, the vote came down to “party lines.”
Also unsurprisingly, Trump’s personal Supreme Court appointee Neil Gorsuch cast a “yea” vote in favor of stripping away this important worker protection, alongside the conservative majority on the bench.
Congress Can Act
Sen. Gillibrand, as of this writing, stands with at least 17 Senate co-sponsors for the Ending Forced Arbitration of Sexual Harassment Act of 2017. The House version has 15 co-sponsors. The Supreme Court just decided companies have the right to include forced arbitration clauses in their employment agreements and contracts — a practice that is well-known to actively bar workers from taking legal action commensurate with the workplace harms they’ve experienced.
It effectively turns corporations into their own regulatory and policing bodies once more, which is preposterous — and a huge leap back in time for human rights.
That makes both the House and Senate versions of this ban on forced arbitration — at least as it applies to sexual harassment cases — an important step Congress can take, right now, to fix some of the damage this Supreme Court decision has done.
For the immediate future, it’s not clear what the full ramifications are. Some analysts have suggested it will take years of court proceedings to unpack them fully. Justice Ruth Bader Ginsberg noted sexual harassment claims brought forth as class-action lawsuits will most likely not be affected by this ruling. But that’s not a lot of comfort to anyone who’s experienced workplace harassment firsthand and already feels powerless — or who doesn’t have the strength of numbers.
“The court today holds enforceable these arm-twisted, take-it-or-leave-it contracts — including the provisions requiring employees to litigate wage and hours claims only one-by-one,” she said. “Federal labor law does not countenance such isolation of employees…the risks of employer retaliation would likely dissuade most workers from seeking redress alone.”
– Justice RBG
More broadly, if Congress lets this attack on workers’ rights stand, we can expect a chilling effect on the number and type of legitimate grievances employees bring against their employers — and therefore one less way for Americans to protect themselves from anybody who prioritizes profit over people.