We have experienced a watershed change in the law this week and its ripples will move outward in ever widening circles for years to come. This is, naturally, the decision in Epic Systems Corp. v. Lewis (one of a trio of cases, the others being National Labor Relations Board v. Murphy Oil USA and Ernst & Young LLP v Morris) that dealt with the issue of class action waivers in arbitration agreements. Well, the Supreme Court agreed with the employer and asserted that such waivers are now legal. As a recent blog in the Epstein Becker Wage & Hour Defense Blog points out, this decision may well have a major effect on pending wage-hour class and collective lawsuits, many of which have been held in abeyance until the Court decided the case. I imagine many employers will now implement these waivers and practitioners will likely be advising clients to do so. I wonder, however, if the case will be the panacea that many commentators are hailing it as.
The vote was 5-4, with new Justice Neil Gorsuch writing the decision. The bottom line is that class action waivers are permissible under the Federal Arbitration Act and are not illegal under the National Labor Relations Act. This resolves a conflict in the federal appellate courts as many of these tribunals had held that such waivers were illegal.
As the Epstein Becker post points out, the decision “is an unqualified victory for employers, particularly those who already have such arbitration agreements in place.” As wage hour class actions abound and defending them is so very expensive (e.g. due to the fee shifting potential), a “reasonable” employer might be well-advised to implement such agreements and force their employees, individually, into arbitrations over their wage-hour claims.
But let’s not, those on the management side, start toasting each other with expensive champagne just yet. In many states, the employer has to pay all costs associated with the arbitration, including the arbitrator’s fees. So, as the post mentions, clever plaintiff lawyers can start filing dozens, if not hundreds of individual arbitration cases, which will cause employer costs to skyrocket and maybe then force employers to settle cases that they pushed into arbitration for the very reason of trying to cut costs of litigation.
I hail this decision too, but the practical implications will take some time to play themselves out. The thought of defending dozens and dozens of individual arbitrations, each likely based on the same theory will likely yield gargantuan legal fees and expenses (e.g. arbitrator fees) for the employer. At that point, wouldn’t an employer want to aggregate these individual claims for efficiency and to save money?
Isn’t that a class action?