Wednesday, May 23, 2018

Symposium: The Federal Arbitration Act and the National Labor Relations Act are two ships that pass in the night

Although the Supreme Court’s decision today in Epic Systems Corp. v. Lewis was a close one (5-4), the result was not surprising, in light of the court’s recent decisions establishing the primacy of the Federal Arbitration Act over other, potentially conflicting federal statutes.  At issue was whether the FAA’s mandate to enforce arbitration agreements according to their terms was displaced by Section 7 of the National Labor Relations Act, which grants employees “the right … to engage in other concerted activities for … mutual aid or protection.”  In particular, the employment agreements in these three consolidated cases all required the employees to arbitrate their work-related disputes on an individual basis only.  So the question was whether the NLRA’s protection of “other concerted activities” created a substantive right to pursue group legal action that invalidated the agreements, by displacing the FAA’s mandate to enforce class and collective action waivers in arbitration agreements.

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