The next U.S. Supreme Court term begins on Monday, October 2, 2017. According to the argument schedule, which was just released, three consolidated cases involving the validity of class actions waivers in employment arbitration agreements will be the first cases heard by the Court. The Court's anticipated decision in Lewis (7th Circuit), Morris (9th Circuit) and Murphy Oil (5th Circuit) will like be the most significant employment decision issued by the Supreme Court in the past decade. If the Court upholds the use of class action waivers, we will likely see the end of class action cases being brought by employees. Why? Employers will require employees to sign away their rights to sue in court as a condition of employment, which courts have repeatedly held is perfectly legal. Employers will instead require employees to bring their claims through the private arbitration system. And, employers will require that employees bring only individual claims against the employer, and not join with any of their co-workers.
When an employee comes into my office and says she has $5,000 in unpaid wages, it's just not economically feasible for me to take that case. I don't typically get paid by the hour - I only earn a percentage of what I recover for my clients. But, if an employee comes into my office and says she and 500 of her co-workers have $5,000 in unpaid wages, for a total of $2.5 million in unpaid wages, I could take on that case and still pay my rent. Long story short: if class actions go away, private employment lawyers like me will not be able to take on smaller individual wage claims, and the wage-and-hour laws for those workers will no longer be enforced.
The only ray of sunshine in California is that employees can still bring representative Private Attorney General Act (PAGA) claims in court, and cannot be required to bring them in arbitration. At least for now.