Using Class Action Bans To Silo Workers & Bury Claims

Collective legal action is a vital tool for employees harmed by unlawful treatment at work. Pursuing a claim of workplace harassment, wage theft, or discrimination on an individual basis is often economically unviable, as the costs can easily exceed any possible recovery an employee may obtain. By banding together, employees who have suffered the same or similar harm at work can pool their financial and emotional resources to shine a light on wrongdoing and hold unscrupulous employers accountable.  

Unfortunately, workers’ ability to collectively enforce their workplace rights has been substantially undermined by a handful of very recent U.S. Supreme Court decisions. Over the last decade the U.S. Supreme Court has expressed unprecedented animus toward class proceedings and moved to redefine the very nature of arbitration to preclude class arbitration.

This shift has been to the detriment of America’s consumers and workforce. Divided consumers and employees forced to undergo individual arbitration may experience massive procedural and economic inefficiency by having to duplicate their efforts in separate legal actions. Individual claims are frequently dropped for lack of resources, or, if pursued, are kept out of public view due to secrecy requirements. Siloing workers can also lead to contradictory judgments; that is, two employees of the same company who’ve suffered the same harm at the same time who are forced to arbitrate individually may get opposite decisions under the exact same facts. As most forced arbitration proceedings are confidential, both the employer wrongdoing and the contradictory outcomes avoid public scrutiny. This timeline, beginning in 1989, shares how the Court went from wholly unremarkable acceptance of class arbitration to deliberately denying access to class proceedings to groups of plaintiffs seeking to vindicate their legal rights collectively in the arbitral—and consequently, for many people, any—forum. Click on a moment in the timeline to review the case history.

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