This post is part of OnLabor’s continuing analysis of National Labor Relations Board v. Murphy Oil USA.
Last week, eighteen attorneys general filed an amicus brief in support of the employees in the consolidated cases of Murphy Oil USA, Epic Systems and Ernst and Young before the Supreme Court. The brief urges the Supreme Court to find that “[a]ny contract term that requires an individual employee to waive his right to engage in concerted activities as a condition of employment is  illegal under the NLRA and unenforceable under the Norris-LaGuardia Act.” The brief is available in full here.
The Attorneys General begin their argument by reminding the Court of the history of “yellow dog contracts.” “During the early years of the 20th Century,” the AGs argue, “many employers included terms in their contracts that – like the arbitration agreements at issue here – required individual employees to waive the ability to join together as a condition of employment.” In reaction to these types of agreements, “Congress and many states enacted legislation rendering unenforceable all contract terms that required individual employees to waive their ability to engage in concerted activities,” and Congress and the States eventually passed “the NLRA and analogous state laws to grant employees substantive ‘right[s]’ to engage in ‘concerted activities’ for their ‘mutual aid or protection,’ and to make it illegal for employers to interfere with those rights.”
As a result, the Attorneys General argue that any contract term that waives an employee’s right to participate in “concerted activity” is prohibited by the NLRA and the Norris-LaGuardia Act, and the employers’ “interpretation of the Federal Arbitration Act (“Arbitration Act”) would render these protections meaningless whenever an arbitration agreement is at issue.”
The Attorneys General also claim that the enforcement of class action bans in federal arbitration “would harm the states and lead to the systemic under-enforcement of state and federal workplace protections, including wage-and-hour laws and anti-discrimination statutes.” They contend:
“If employees must bring all of their claims individually, most workers will not bring claims at all because (a) workers often fear that filing claims individually, rather than collectively, will make them the target of reprisal by employers; (b) in the absence of a collective suit, workers may not even know that their rights have been violated; (c) an individual employee’s claim is likely to be small, deterring him from filing a claim; and (d) employees often cannot prove pattern-and-practice claims without participation from their peers.”
The Attorneys General maintain that if the Supreme Court reverses the Ninth and Sixth Circuits, then the Court would not be interpreting laws protecting workers’ rights according to Congress’s intent because “Congress sought to encourage robust enforcement, not to encourage employers to foster creative pathways to evade compliance.”
Again, the brief is available in full here.