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View from Washington: Full docket for high court

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The U.S. Supreme Court’s next session begins Oct. 2, and it promises to be a doozy.

The 2016-2017 term was a pretty sleepy one, with the court short-handed and avoiding taking on potentially divisive cases until the confirmation of Neil Gorsuch. But the court will have hot-button issues to contend with right off the bat this term. It will hear arguments on President Donald Trump’s travel ban in the consolidated cases Trump, President of U.S., v. International Refugee Assistance and Trump, President of U.S., v. Hawaii. The court also agreed to decide in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission whether applying Colorado’s public accommodations law to require a baker who designed and created custom wedding cakes to do so for a same-sex couple despite his religious beliefs violates the free speech or free exercise clauses of the First Amendment.

But to get things started on Oct. 2, the court will hear arguments in three consolidated cases: National Labor Relations Board v. Murphy Oil USA, Epic Systems Corp. v. Lewis and Ernst & Young v. Morris. The outcome may be critical for employers, because the issue at the heart of these cases is whether arbitration agreements with individual employees bar them from pursuing work-related claims on a collective or class basis, or whether such agreements limit employee rights under the National Labor Relations Act to engage in concerted activities. The issue caused a split in the lower courts, making it ripe for Supreme Court review.

The National Labor Relations Board has come down on the side of employees — a stance dating back to the Obama administration — and will represent itself in the oral arguments, while the Trump administration filed a brief in June urging the court to rule in favor of employers by arguing that class action waivers in arbitration agreements should be enforced, creating a split between federal agencies that echoes the division in the lower courts.

Where the battle lines are drawn among stakeholders is predictable. The U.S. Chamber of Commerce seeks an end to the “Obama board’s years-long war on class action waivers,” through President Trump’s NLRB appointees and legislation to prevent the board from trying to bar arbitration agreements. Many employers utilize arbitration agreements that limit costly class actions, as the chamber notes. But workers’ rights groups object to forced arbitration agreements that deprive employees access to the court system.

I can see both sides of the argument. Employers must carefully manage both their litigation risks and their bottom lines, and such agreements can be a valuable tool to do so. But in the hands of employers who refuse to take responsibility for their adverse employment actions or hostile work environments, these agreements can leave workers vulnerable to all types of abuses from sexual harassment to unjust terminations. Just ask the women of Fox News, who silently suffered until Gretchen Carlson had the guts to stand up for herself and shine a light on the bad behavior at the media giant.

Not an easy question for the justices to answer, but I hope they can reach some type of resolution — because employers hate uncertainty.

 

 

 

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