For Immediate Release - August 17, 2017

AG Healey Files U.S. Supreme Court Brief to Protect Employees’ Legal Rights

Joins Coalition of 17 Attorneys General in Speaking Out Against the Use of Mandatory Arbitration Agreements in Employment Contracts

BOSTON – Massachusetts Attorney General Maura Healey today joined a coalition of 17 state attorneys general in filing an amicus brief in the United States Supreme Court in support of the National Labor Relations Board (NLRB) and several employees who were forced to sign mandatory arbitration agreements.

In the three consolidated cases – Epic Systems Corp. v. Lewis, NLRB v. Murphy Oil USA, and Ernst & Young v. Morris – the Supreme Court will decide whether employers may require their employees, as a condition of employment, to sign mandatory arbitration agreements that bar them from joining together to pursue work-related claims on any collective or class basis.

As described in the amicus brief, employees  have long held a “fundamental right” under the National Labor Relations Act (NLRA) to join together in concerted activities. The amicus brief argues that employees should not be forced to sign away that right.

“Employees should not be forced to sign away their basic legal rights just to hold a job,” AG Healey said. “These mandatory arbitration agreements prevent workers from joining together to fight mistreatment and violations of law. As state attorneys general, we are filing this brief to protect workers in Massachusetts and across the country.”

As the attorneys general explain, any contract term that requires an individual employee to waive this right as a condition of employment is illegal under the NLRA and unenforceable under the Norris-LaGuardia Act.

“Many states have enshrined that same right in our own labor statutes and have rendered unenforceable in state court any contract that requires an individual employee to waive the ability to engage in concerted activities,” the brief states. Together, these statutes ensure that employees may act collectively to assert their legal rights.

The attorneys general also contend that the right of employees to join together to bring legal claims is necessary to vindicate workers’ rights under other vital workplace statutes, including minimum-wage and overtime laws as well as anti-discrimination provisions. Employer-imposed bans on collective legal action also allow many employers to insulate themselves from liability for their legal violations since it is very difficult for workers to pursue their claims individually in private arbitration, sometimes requiring workers to pay fees and costs associated with the proceeding.

The three cases consolidated before the Supreme Court arise from the Fifth, Seventh, and Ninth Circuits. In Epic Systems Corp. v. Lewis and Ernst & Young LLP v. Morris, the Seventh and Ninth Circuits came to the opposite conclusion. These two courts relied on a Federal Arbitration Act provision stating that arbitration agreements may be unenforceable “upon such grounds as exist at law or in equity for the revocation of any contract”—such as when an agreement is illegal under federal labor law. In NLRB v. Murphy Oil, the Fifth Circuit held that an employment contract requiring an employee to resolve all disputes through individual arbitration, waiving any ability to proceed collectively, is enforceable despite the NLRA’s protections for employees’ “concerted activities.”  

The states that joined in the filing of today’s amicus brief include: California, Connecticut, the District of Columbia, Delaware, Iowa, Illinois, Massachusetts, Minnesota, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Washington, Virginia and Vermont.