SUPREME COURT RULING ON ARBITRATION POLICIES LIMITING CLASS ACTIONS FURTHER SHOWS MORE LIMITED APPLICATION OF PROTECTED CONCERTED ACTIVITY DOCTRINE

In Epic Systems v. Lewis, the U.S. Supreme Court ruled that employers could require mandatory individual employment agreements with employees that require individual arbitrations rather than any type of class or collective actions.  Plaintiffs had contended that such limits on class and collective actions interfered with their protected concerted activity to bring such actions.  Instead, the Court in a 5-4 majority ruled that concerted activity was limited to actions that are "more directly involved with organizing and traditional bargaining."

Most commentators caution about over-reading the Supreme Court ruling, however, as it applied the rationale for what happens in legal proceedings once you get there.  It does not apply to employees banding together to discuss or prepare for joint action on employment issues.  Some have interpreted the case as supporting the right of employers to contract whatever they want in their individual arbitration agreements with their employees.

The significance of the case is shown by fact that there were hundreds or thousands of federal and state lawsuits on hold awaiting the result of the ruling.  Many of the cases were wage-hour collective actions, and judges had agreed to suspend the lawsuits pending the outcome of the Supreme Court ruling as to whether the cases could proceed as class or collective actions, or had to be referred to individual arbitration.

Various studies indicate that by 2017, over 56% of private-sector non-union workers were subject to mandatory arbitration agreements.  The issue has become particularly more controversial recently as some womens’ rights groups suggest individual arbitration makes it more difficult for women to pursue sexual harassment claims.