Epic Shift: Court’s Class Action Decision Could Limit #MeToo Cases

The Supreme Court’s landmark decision yesterday on arbitration agreements has widespread implications for all employers. In Epic Systems Corp. v. Lewis, a 5-4 opinion written by Justice Gorsuch, the Supreme Court held that arbitration agreements and class/collective action waivers are enforceable, putting to rest any argument that the National Labor Relations Act prevents or limits their enforceability.

The decision provides employers further options for limiting litigation risk, particularly with respect to costly wage and hour collective actions. The decision also contains important implications for employers that maintain or are considering implementing arbitration agreements in the workplace.

The opinion resolves an appeals court split on the enforceability of class action waivers in arbitration agreements, and repudiates the recent position of the National Labor Relations Board that these waivers were unenforceable. The decision addressed three consolidated cases: Epic Systems Corp. v. Lewis (Seventh Circuit), Ernst & Young LLP et al. v. Morris et al. (Ninth Circuit), and National Labor Relations Board v. Murphy Oil USA, Inc., et al. (Fifth Circuit). It marks a sea change for employers in jurisdictions where these waivers previously were not upheld, particularly within the Ninth circuit, as well as the Sixth and Seventh circuits. It reaffirms the position already adopted by courts within other jurisdictions, such as the Fifth circuit, that class action waivers are enforceable.

For employers whose operations span across different jurisdictions, the decision provides much needed clarity and certainty, now allowing employers to rely on a universal arbitration agreement with a class action waiver in each state in which they operate without concerns about enforceability.

Significant ramifications

The decision also has significant ramifications for the scope of class action waivers. In each of the three consolidated cases, the plaintiffs were pursuing class/collective actions with Fair Labor Standards Act (FLSA) claims for unpaid overtime. Sheila Hobson’s FLSA claim in the Murphy Oil case had been dismissed by the trial court as a result of the arbitration provision in the employment agreement she signed when she started work at a gas station in Alabama. By contrast, plaintiff Jacob Lewis, a technical communications employee, had overcome a motion to dismiss his FLSA overtime class action in the Epic Systems case by arguing that a class action waiver in an arbitration agreement that had been emailed to him by his employer was unenforceable. Likewise, in the Ernst & Young case, plaintiff Stephen Morris sought unpaid overtime under the FLSA and the California Labor Code for working long hours during audit season. As a result of the Supreme Court’s ruling, after remand, all of these claims now appear destined for arbitration unless they are resolved. The Epic Systems decision represents a broader affirmation, however, that arbitration agreements are enforceable regardless of the nature of an employee’s claim, even if the claims are brought pursuant to employment statutes that explicitly provide for a class or collective action

In recognition of the benefits of arbitration, “the promise of quicker, more informal, and often cheaper resolutions for everyone involved,” as Justice Gorsuch put it, the decision contains important implications for drafting or updating arbitration clauses. The decision reiterates that employers may generally fix the procedures to govern arbitration in the terms of the arbitration agreement with the expectation that they will be upheld. Guidance can be drawn from the three agreements which the court held enforceable, each with varying terms. For example, one of the arbitration agreements gave the employee the option to choose the arbitrator, whereas another did not.

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#MeToo implications

The decision may also carry potential implications for states responding to the #MeToo movement with legislation to restrict the ability to arbitrate claims of sexual harassment. The Epic Systems opinion commences with a question with great weight on this issue: “Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?” The opinion responds with a resounding “yes,” noting later that debates over arbitration “remain hotly contested” in Congress. Although the opinion does not discuss the Ending Forced Arbitration of Sexual Harassment Act, a current bill pending in Congress, the opinion contains repeated reiterations of the primacy of the Federal Arbitration Act. Arguments that the Federal Arbitration Act preempts, and therefore dooms, state laws restricting the enforceability of arbitration in cases alleging sexual harassment or sex discrimination may now draw added force from Epic Systems.

In the wake of Epic Systems, employers that are interested in more fully developing an arbitration program are left with a variety of issues to consider:

  • What procedures will govern the proceeding?
  • What jurisdiction’s law will govern?
  • Where will disputes be adjudicated?
  • Does law in a given jurisdiction require the employer to pay the costs of arbitration?
  • Could a plaintiff argue that terms are procedurally or substantively unconscionable?
  • Is class arbitration prohibited, and if there is a dispute over this clause, will it be resolved by a court or arbitrator?
  • When must claims be filed?
  • What evidentiary guidelines will apply?
  • How is cost shifting addressed?
  • Is arbitration voluntary or mandatory?

These factors will come into greater focus for employers as the Epic Systems ruling reverberates through the lower courts. While there are many issues to evaluate, the Supreme Court’s ruling assures employers of one critical point: arbitration agreements with class action waivers remain a useful option for employers seeking to minimize litigation risk exposure.

Anthony Haller is a partner in the law firm of Blank Rome, an Am Law 100 firm with 13 offices and more than 600 attorneys and principals. Haller’s practice covers all aspects of labor and employment law, including preventative counseling, complex litigation, trial, and appellate work.

Anthony is recognized by Chambers USA as a leader in labor and employment law, stating that he is regarded as a “calming force in difficult circumstances” and is “praised for his strategic capabilities.” 

Anthony was called to the Bar of England and Wales in 1979 and practiced as a Barrister in England before coming to the United States.

Anthony has written numerous articles on employment law topics. He co-authored the chapter on “Introduction to Employment Laws of the United States for Foreign Investors” in Business One Irwin’s Business Opportunities in the United States Reference Guide and the chapter on “Labor Law in the Construction Industry” in Aspen Publications’ Construction Business Handbook.

Anthony is a frequent lecturer on employment law issues and for many years has presented at the Annual Pennsylvania Bar Employment Law Institute. He regularly appears on Law Journal Television. Two of the programs in which he has recently appeared, dealing with sexual orientation and transgender issues in the workplace, won an Emmy from the National Academy of Television Arts and Sciences MidAtlantic Region and two other programs, dealing with gender pay equality and the gig economy, received Emmy nominations.

Anthony is a member of the Executive Committee of the Firm, served as Labor and Employment Practice Group Chair (2008–2013), and currently leads the Trade Secret and Unfair Competition Practice at the firm.

Scott Cooper is a partner with Blank Rome. He counsels and litigates in the areas of labor and employment law, regulation, and business litigation. He has a diverse client base, representing large publicly traded corporations, start-ups, partnerships, major nonprofits, and government entities. In addition to leading his practice area, he co-founded and leads the Trade Secret and Non-Compete Litigation group. He appears regularly in print, webinars, seminars, and on television offering insights into these complex areas.

Scott’s clients benefit from his nearly 25 years of courtroom experience, judiciary work, and political and civic involvement, including serving as president/chancellor of the Philadelphia Bar Association and on the board of trustees for Temple University. Clients commend his "strong strategic vision and analytical prowess, bolstered by a practical business approach." (Chambers USA) Scott previously served multiple terms on Blank Rome’s Partner Board and he was the Firm’s Philadelphia-based hiring partner and co-chair of its summer hiring program.

Before joining Blank Rome, Scott served as a judicial law clerk to the Honorable Herbert J. Hutton of the United States District Court for the Eastern District of Pennsylvania and as an academic intern for the chief judge of the United States Court of Appeals for the Third Circuit. He is a certified court arbitrator.

Caroline Donelan is a partner in the Los Angeles office of Blank Rome. She counsels and defends domestic and foreign corporations in all areas of employment law compliance and litigation, including wage and hour class actions, wrongful termination, discrimination, harassment, trade secret disputes and data protection, and alleged fiduciary breaches.

Caroline’s proactive risk management practice includes drafting key workplace policies, conducting supervisor training, managing workplace investigations, and providing day-to-day counseling on the wide variety of employment and labor issues her clients face.

Caroline also provides transactional support and advice on stock and asset purchase agreements, including buy- and sell-side due diligence and negotiating executive agreements.

Emery Richards is a litigation associate in the Houston office of Blank Rome with a focus on employment and trade secret matters. Emery has experience representing governmental entities and officials, as well as businesses and individuals in the energy, manufacturing, healthcare, chemical, real estate, maritime, software, professional sports, staffing, pharmaceutical, and food and beverage industries. She has participated in all aspects of litigation, including trial, motions practice, discovery, and appeal.

Emery routinely counsels organizations on employment law compliance, and has conducted training programs and internal investigations in the workplace. She litigates and advises clients on all aspects of employment and trade secret law.