Cicilline, Top Dems to Sessions: Don’t Attack Workers’ Rights
WASHINGTON – U.S. Congressman David N. Cicilline (D-RI), Ranking Member of the House Judiciary Committee’s Subcommittee on Regulatory Reform, Commercial and Antitrust Law, today called on U.S. Attorney General Jeff Sessions to stop taking away the rights of working people to collectively hold their employers accountable for wage theft, employment discrimination, and other unlawful workplace conduct. Cicilline was joined by House Judiciary Committee Ranking Member John Conyers (D-MI), House Education and the Workforce Committee Ranking Member Bobby Scott (D-VA), and the Ranking Member of the House Transportation and Infrastructure Committee’s Subcommittee on Economic Development, Public Buildings and Emergency Management, Hank Johnson (D-GA). The Members raised concerns that the Department of Justice’s (DOJ) position if adopted by the Supreme Court, would prescribe the end of class action employment litigation and limit employees to individual arbitration of alleged violations of employment laws.
“We write to express our concern with the Acting Solicitor General’s decision to reverse the Department’s position concerning the rights of workers to hold employers accountable for unlawful conduct in the workplace in National Labor Relations Board v. Murphy Oil. As the Acting Solicitor General’s brief acknowledges, the Department has adopted the ‘opposite’ position since petitioning for a writ of certiorari on behalf of the National Labor Relations Board less than a year ago,” the Democratic lawmakers wrote. “The Department now contends that employers may require employees to waive their statutory rights through forced arbitration on an individual basis.* This is a not only a troubling departure from its preexisting position in this case, but it also robs hardworking Americans of their key ability to band together to improve workplace conditions and stop employers from violating the law.”
*The DOJ’s position stands in contrast to the longstanding protections embodied in the National Labor Relations Act that workers have the right to seek accountability on a class or concerted basis.
The full text of the letter sent to Attorney General Sessions is embedded below. A PDF copy of the letter, as delivered, can be downloaded by clicking here.
The Honorable Jeff Sessions
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Attorney General Sessions:
We write to express our concern with the Acting Solicitor General’s decision to reverse the Department’s position concerning the rights of workers to hold employers accountable for unlawful conduct in the workplace in National Labor Relations Board v. Murphy Oil. As the Acting Solicitor General’s brief acknowledges, the Department has adopted the “opposite” position since petitioning for a writ of certiorari on behalf of the National Labor Relations Board less than a year ago. The Department now contends that employers may require employees to waive their statutory rights through forced arbitration on an individual basis. This is not only a troubling departure from its preexisting position in this case, but it also robs hardworking Americans of their key ability to band together to improve workplace conditions and stop employers from violating the law.
We are foremost alarmed by the Department’s decision to side with large corporate interests against hard-working Americans. Murphy Oil concerns the statutorily-protected rights of workers to hold unscrupulous employers accountable for violating the law on a collective basis. Rather than deferring to the Board—the chosen instrument that Congress has charged with protecting workers against unfair labor practices—the Department now echoes the U.S. Chamber of Commerce, which filed a substantively similar brief in the case. This new stance is a shift away “from arguing in favor of working people to arguing in favor of big business,” and is “the clearest indication yet of where the Trump administration stands: with corporate interests and against working people,” as a former special counsel to the Board has noted.
The Federal Arbitration Act (FAA) does not apply when there are “such grounds as exist at law or in equity for the revocation of any contract.” In Murphy Oil, the Board argues that this exception includes agreements that are illegal as an unfair labor practice because they require employees to “resolve all employment-related claims through individual arbitration.” The plain language of the NLRA supports the Board’s conclusion. It guarantees workers “full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” And it also expressly provides employees with the right “to engage in other concerted activities,” such as private enforcement on a class basis, “for the purposes of collective bargaining or other mutual aid or protection.” The Court has supported this view of the Act, noting:
Thus, it has been held that the ‘mutual aid or protection’ clause protects employees from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums, and that employees’ appeals to legislators to protect their interests as employees are within the scope of this clause.
Prior to the Department’s decision to revise its amicus brief in Murphy Oil, it agreed with the Board’s construction of the FAA’s savings clause, arguing that it “does not require enforcement when a contract is unlawful.” This position conformed to the Department’s long-held views that a forced arbitration clause is not enforceable where it would “prevent the effective vindication of the plaintiff’s federal statutory rights.” This is particularly true where Congress has expressly established privately enforceable rights by law, such as through labor and employment statutes. As the Department has observed in prior cases before the Court, these laws “reflect a congressional judgment that private enforcement, even of small-value claims, is an important component of the statutory scheme.” This rationale, the Department argued, advances the goals of the FAA and “the various federal statutes that confirm rights of private enforcement.”
The Acting Solicitor General now states that it disagrees with the Board’s position in the case because it did not give “adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the FAA.” But this sweeping change in position ignores the plain language of the FAA, which was carefully considered by the Board and the Department in its prior brief, and the legislative history of the Act. There is scant evidence that Congress intended the FAA to curtail the enforcement of vital statutory protections. The legislative history of the FAA suggests that the purpose of the law was to be narrowly applied to disputes between merchants, not employers and employees. Justice Abe Fortas noted that the Act’s sponsors did not intend the FAA to apply to all disputes. Quoting “the American Bar Association’s draftsman of the bill,” Justice Fortas explained that Congress intended the Act to apply to the “simpler questions of law” between merchants:
Not all questions arising out of contracts ought to be arbitrated. It is a remedy peculiarly suited to the disposition of the ordinary disputes between merchants as to questions of fact—quantity, quality, time of delivery, compliance with terms of payment, excuses for non-performance, and the like. It has a place also in the determination of the simpler questions of law—the questions of law which arise out of these daily relations between merchants as to the passage of title, the existence of warranties, or the questions of law which are complementary to the questions of fact which we have just mentioned.
Likewise, Congress never intended the FAA to apply on a take-it-or-leave-it basis. During debate on the bill, members of Congress who expressed concern that arbitration would harm “captive customers or employees” were “emphatically assured by the supporters of the bill that it was not their intention to cover these cases.”
The Department’s stunning, and virtually unprecedented, decision to undermine the Government’s interest in a case before the Court is also deeply troubling. The Department may, of course, change its views on a legal matter or administrative policy following a change in administration so long as it provides a reasoned explanation for the change. But we are unaware of any modern examples of the Solicitor General actively undermining a Federal agency’s position in a case before the Supreme Court. The Department’s conduct is readily distinguishable from Bob Jones Univ. v. United States, where it represented the Internal Revenue Service before the Court.
In that case, the government changed its position following a change in administration. Here, the Acting Solicitor General has authorized the Board to represent itself in the case and, by extension, the United States. The most relevant examples of this occurred nearly 40 years ago, after initially supporting the Federal Communications Commission in F.C.C. v. Pacifica Foundation, the Reagan Justice Department filed a contrary brief in support of the Commission on one issue but in disagreement on another. Thereafter, in Dirks v. S.E.C., the Department filed a brief contravening the position of the Securities Exchange Commission in the early 1980s. Since then, this practice has not occurred under any of the following Republican and Democratic administrations.
Finally, we are disappointed by the Department’s decision to undermine the private enforcement of Federal statutory protections, a hallmark of the justice system. Numerous laws authorize private remedies for victims of unlawful conduct and general deterrence. As the Department has noted, this is particularly true in the context of redressing systemic misconduct in the workplace through broad remedies designed to redress individual victims harmed and prevent future misconduct. It is also well established that Congress, which is politically accountable for policy decisions involving statutory rights, confers private remedies to ensure the general enforcement of these statutes. As an enforcement agency, the Department should be concerned about the loss of an effective private enforcement remedy, rather than advancing policies to foreclose the vindication of statutory rights.
Requiring individual arbitration before a dispute arises undermines the private enforcement of these statutorily-protected rights. Forced arbitration clauses are often buried in the fine print of employment contracts and signed in haste by employees as a precondition for employment without the benefit of legal counsel. These clauses are used by businesses to limit scrutiny and accountability for unlawful conduct, frustrating the statutory and common law rights protecting workers against negligence and abuse. Businesses have also begun inserting unconscionable terms into these clauses in an effort to circumvent statutory protections, magnifying the importance of preserving access to the courts for employees and consumers.
Accordingly, we are deeply disappointed and expect more than the thin rationale provided by the Justice Department in its revised amicus to justify a complete reversal of its vigorously argued position that collective action waivers are unlawful. The mission of the Justice Department is clear: “To enforce the law and defend the interests of the United States according to the law; to ensure public safety . . . to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.” It cannot be said with any degree of confidence that the Department’s decision in Murphy Oil to undermine the statutory protections of working Americans supports this mission.
David N. Cicilline
Subcommittee on Regulatory Reform, Commercial and Antitrust Law
Committee on the Judiciary
John Conyers, Jr.
Committee on the Judiciary
Henry C. “Hank” Johnson, Jr.
Subcommittee on Economic Development, Public Buildings and Emergency Management
Committee on Transportation and Infrastructure
Robert C. “Bobby” Scott
Committee on Education and the Workforce
Rich Luchette, 202-281-5094
Next Article Previous Article