The National Labor Relations Act (NLRA) leaves no doubt about its purpose. Enacted in 1935, it was set against a backdrop of decades of intense and often violent labor strife. Recall the massacre of striking coal miners at Ludlow, Colorado (1914); the bloody Battle of Blair Mountain in West Virginia (1921), which pit miners against the militia; and the West Coast Longshoremen’s Strike (1934) over union representation, which revealed organized workers’ enormous power over the nation’s economy.
The NLRA was designed to minimize strife by requiring employers to recognize employees’ efforts to engage in “mutual aid and protection”; adjudicating conflict so as to avoid direct action; and, to quote from the act itself, by “encouraging practices fundamental to the friendly adjustment of industrial disputes … and by restoring equality of bargaining power between employers and employees.”
Employers, naturally, prefer to deal with their workers one on one. But workers have shown throughout history they will not abide by this unfair practice. They organize, they work together, and, when their employers refuse to deal with them all at once, they strike. Workers engaged in, and prospered from, collective action long before passage of the NLRA. The law merely sought to regulate this action for the public good, to replace strike with negotiation, conflict with cooperation.
History is now repeating itself; labor strife is increasing, thanks in part to the rise of legal contracts that force workers to settle disputes in a rigged system of arbitration rather than an impartial court of law.
In 2018, the U.S. Supreme Court in Epic Systems Corp. v. Lewis concluded that class action litigation does not fall within the NLRA’s protected activity of “mutual aid and protection.” This meant that the Federal Arbitration Act (a law that the high court misinterpreted decades earlier) allowed corporations to force workers to arbitrate workplace disputes individually by making them sign arbitration agreements as a condition of employment.
This ruling dealt a major blow to workers’ rights. If, for example a company steals wages from 100 employees, they would now be forced to deal with the company one on one, in an arbitration process that structurally favors their employer. Unsurprisingly, companies vastly prefer this option; now, roughly half of the nation’s workers are subject to forced arbitration agreements.
Companies that impose arbitration agreements no doubt suppose that employees will meekly submit to their fate and accept the terms given. But like the robber barons of the last Gilded Age, they are wrong.
Rising Strife
In the last few years, workers have united against forced arbitration agreements. In 2021, Activision Blizzard employees engaged in three work stoppages to protest a toxic corporate culture, sexual harassment in the workplace, and the company’s use of forced arbitration agreements. In response, CEO Bobby Kotick pledged to waive arbitration in certain cases, although the extent of his promise remains unclear, particularly with Microsoft’s potential acquisition of the company.
Of perhaps greater note was the November 2018 walkout of 20,000 Google employees to protest the megacompany’s failure to properly respond to workplace sexual harassment. Again, forced arbitration provisions were a specific target because they made it much harder for survivors to hold the company responsible.
The walkout was hardly a strike: It lasted 15 minutes and wasn't intended to apply economic pressure. But the impressive show of force nonetheless had an effect: Google almost immediately made concessions, including ending forced arbitration of sexual harassment cases.
Still, much more needs to be done to protect workers’ rights and stave off strife. Thankfully, lawmakers are taking some action. In a rare moment of bipartisan unity, Congress recently passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. While a great step in the right direction, the bill leaves racial discrimination, wage theft, and other areas still subject to arbitration, as my colleague recently explained.
Congress ought to ban forced arbitration in all cases. The FAIR Act would eliminate predispute forced arbitration in employment, consumer, antitrust, and civil rights cases. Forced arbitration benefits bad actors and undermines the legitimacy of our law and our justice system. Ending individualized arbitration of workplace disputes would allow workers to once again seek accountability in the courtroom, and it could help reduce labor strife at the same time.
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Ian Campbell | March 3, 2022
Employers prefer to deal with their workers one on one. But workers have shown throughout history they will not abide by this unfair practice. They organize, they work together, and, when their employers refuse to deal with them all at once, they strike. Workers engaged in, and prospered from, collective action long before passage of the National Labor Relations Act. The law merely sought to regulate this action for the public good, to replace strike with negotiation, conflict with cooperation. History is now repeating itself; labor strife is increasing, thanks in part to the rise of legal contracts that force workers to settle disputes in a rigged system of arbitration rather than an impartial court of law.
Allison Stevens | March 2, 2022
Imagine you're in the market for a new furnace. You decide to buy a more fuel-efficient system -- even though the price tag is higher -- because it will lower your monthly heating bills. Another selling point: The fuel-efficient furnace emits less carbon into the atmosphere -- a benefit you can't quite quantify but that you value nonetheless for its small salubrious effect on the planet. Policymakers go through a similar -- though much more complex -- process when implementing laws. But an obscure federal mandate known as cost-benefit analysis renders them unable to fully account for costs and benefits that are difficult to measure in dollars and cents, like the large-scale value to society of federal rules that protect public and environmental health. Despite its name, a true analysis of a rule's full benefits is impossible.
Daniel Farber | February 28, 2022
The environmental justice movement began with a focus on neighborhood struggles against toxic waste facilities and other local pollution sources. That focus now includes other measures to ensure that vulnerable communities get the benefit of climate regulations. The most powerful tool for assisting those communities, however, may be the National Ambient Air Quality Standards (NAAQS). The NAAQS (pronounced "knacks") are supposed to be the maximum amount of air pollution consistent with protection of public health and welfare.
Noah Sachs | February 24, 2022
After the Supreme Court's decision last month rejecting the Biden vaccine mandate for large employers, it wasn't just the public health community that was asking "where do we go from here?" Environmental activists and attorneys immediately recognized that the Court's reasoning in the vaccine case, National Federation of Independent Business v. Department of Labor, will likely lead to a win for the fossil fuel industry in the biggest environmental case of this term, West Virginia v. EPA.
Joel A. Mintz | February 24, 2022
In its first year in office, the Biden administration has, to its credit, reversed a number of anti-environmental policies initiated by former President Donald Trump. Gone is the previous administration's infamous "two-for-one" policy, under which federal agencies had to eliminate two regulatory requirements for every new regulation they proposed. Numerous Trump-era initiatives that cut back needed air and water quality protections have also been rescinded. And, thankfully, the U.S. Environmental Protection Agency (EPA) and other federal agencies are once again focused on responding to the mounting dangers posed by the climate crisis. Given these steps forward, it is perplexing that the current administration has not yet restored a critical environmental tool that has proven workable and highly beneficial in past years: EPA's Supplemental Environmental Projects (SEPs).
Allison Stevens | February 23, 2022
In this post, we take a look at the Environmental Justice for All Act, legislation originally introduced in 2021 that would strengthen environmental standards and create safer and healthier communities for all, regardless of race, ethnicity, or income. A recent Congressional committee hearing on the act might finally be moving the legislation forward.
Jamillah Bowman Williams, Marcha Chaudry | February 22, 2022
In a fair and just country, corporations are held accountable in the courts if their irresponsible behavior harms people. However, like many policies, the communities most impacted by forced arbitration are historically marginalized groups. Indeed, forced arbitration has a disproportionate impact on low-income Americans and Black and brown women when they are the victims of discrimination. Their abuse goes beyond the general adverse impacts of forced arbitration, noted in a new report by the Center for Progressive Reform.
Karen Sokol | February 21, 2022
On Jan. 25, the U.S. Court of Appeals for the Fourth Circuit held oral argument in Baltimore v. BP PLC, a case in which the city is seeking to hold BP and other fossil fuel companies liable in state court for their systematic deceptive marketing campaign to hide the catastrophic dangers of their products. The goal of their decades-long, ongoing disinformation campaign: to lock in a fossil-fuel based society—and continue reaping astronomical profits—even during a fossil fuel-driven climate emergency. Other cities, counties, and states have brought similar suits in their state courts, all invoking long-standing state deceptive marketing laws. So why is Baltimore's case before a federal appellate court? The panel's three judges wanted to know—and the answer is more misrepresentation.
Jake Moore | February 17, 2022
The U.S. Environmental Protection Agency's (EPA) Office of Land and Emergency Management recently released its draft Environmental Justice Action (EJ) Plan. The office's EJ Action Plan lays out four goals to guide and motivate its push toward equity and climate justice. These include: strengthening compliance with cornerstone environmental statutes and civil rights laws, integrating environmental justice considerations into OLEM's regulatory process, improving communications and collaborations with communities in carrying out OLEM policies, and carrying out Biden's Justice 40 initiative to deliver 40 percent of clean energy and climate benefits to disadvantaged communities. While well-intentioned, these aspirational goals require filling out.