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Editor’s Note. As discrimination attorneys representing people throughout the Bay Area – from San Francisco to Oakland, Berkeley to Palo Alto and between – we receive many complaints from employees concerning possible employment discrimination up to and including wrongful termination. In this blog post, we review some new actions of the Trump administration and various government agencies concerning arbitration agreements. If you think you may be facing discrimination at your place of employment, reach out to one of our San Francisco Bay Area employment attorneys for a confidential consultation.
In Epic Systems Corp. v. Lewis, the executive branch had an about-face in their position on mandatory arbitration agreements that waive employees’ right to class action. The Obama Administration’s solicitor general urged the Supreme Court to review this issue in favor of employees seeking class action in court. However, once the Trump Administration weighed in, the solicitor general’s office reversed its position and sided with employers seeking to uphold the enforceability of individual arbitration. The National Labor Relations Board, the government agency responsible for enforcing employee’s right to collective bargaining and class action under the Fair Labor Standards Act, disagreed with the Trump Administration.
On October 2, 2017, the U.S. Supreme Court heard divided oral arguments in Epic Systems Corp. The employer shared their thirty minutes of argument time with the U.S. Solicitor General, while the employees shared their argument with the NLRB. Lewis and the NLRB asserted that mandatory arbitration agreement waiving an employee’s right to class action was unenforceable as it violated the Fair Labor Standards Act. That federal law protects employees’ right to collective action “to engage in concerted action of mutual aid or protection.” The Supreme Court has not yet issued a ruling on the case.
By inserting its opposing position directly into active litigation, the Trump Administration is forcing its political agenda irrespective of the rule-making conventions of the administrative state. The question remains whether the courts will be perturbed by this overt political intrusion or if the Administration’s presence in the courtroom will influence decisions.
Editor’s Note. If you think you may be facing employment discrimination or any type of discrimination in the San Francisco Bay Area, reach out to one of our attorneys for a confidential consultation. The facts and the law may be complex, but your first best step is to find a top-rated discrimination attorney in Oakland, San Francisco, or nearby and come in for a consultation or conduct one over the telephone. You never know if you have a case until this first step is taken!