Clear as Mud

It’s clear that the U.S. Supreme Court ruling in Epic Systems Inc. v. Lewis is a big win for employers who utilize or are considering adding class waivers in their employment agreements, and this month’s cover story provides all of the practical advice on how risk and claims professionals can take advantage of the decision moving forward, both before and after an employment claim is made.

But the 5-4 split between the justices inspired me to understand both sides, especially when the dissent by Justice Ginsburg begins its third paragraph with the rather blunt “To explain why the Court’s decision is egregiously wrong [emphasis added], I first refer to the extreme imbalance once prevalent in our nation’s workplaces, and Congress’ aim in the National Labor Relations Act to place employers and employees on a more equal footing.” Not exactly subtle, but then again, that’s why her supporters call her the Notorious RBG.

Justice Ginsburg makes her point later in the rebuttal when she asserts, “Employees’ rights to band together to meet their employers’ superior strength would be worth precious little if employers could condition employment on workers signing away those rights.” She supports her argument by citing Sutherland v. Ernst & Young, a similar case that revolved around the use of mandatory individual arbitration that found an employee would have to spend an eye-popping $200,000 just to recover $1,867 in disputed wages.

This falsity of choice—that employees are “asked” to sign a class waiver, knowing that not doing so risks losing a job opportunity—reads like Hobson’s choice. But Justice Gorsuch perhaps puts it most succinctly in his opinion of the court, saying, “As a matter of policy, these questions are surely debatable. But as a matter of law, the answer is clear.”