The tweet passed silently over the foreign-made goods sold by first daughter Ivanka Trump's company and similarly omitted any specific benefits for U.S. workers from Trump administration policies. Just as well: Nearly eight months into his presidency, Trump has done more to hurt than to help U.S. workers, as the New York Times former labor correspondent Steven Greenhouse pointed out in a Labor Day weekend article.
Trump's photo-op events taking credit for keeping jobs in the United States have mostly been debunked. In addition, as Greenhouse and others have pointed out, many of the administration's deregulatory moves have actually weakened protections for workers in the workplace and reduced protections for workers' savings and retirement plans.
Now, the administration is set to open the Supreme Court's new term next month [Oct. 2] by siding with business interests and against organized labor in a case testing employees' ability to join with other workers in contesting workplace policies that violate state or federal law. In a critical legal showdown, the Trump administration's solicitor general's office reversed the position previously taken by the Obama administration and decided to support employers' right to dictate contract terms that prevent workers from collective or class actions in job-related disputes.
The three consolidated cases the justices will hear in its first argument of the October 2017 term pose a conflict between the pro-arbitration policy of the Federal Arbitration Act and the National Labor Relations Act's protection for workers' rights to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." The three employers involved in the cases — Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil Co. — all required employees to sign contracts agreeing to individual arbitration of any disputes.
Federal appeals courts in Epic Systems and Ernst & Young ruled that the labor law's "concerted action" provision, enacted in 1935, overrides the provision in the 1925 law safeguarding enforcement of arbitration clauses in private contracts. The National Labor Relations Board (NLRB) similarly blocked enforcement of an arbitration clause in the third case, but on appeal the Fifth U.S. Circuit Court of Appeals cited the earlier law in rejecting the position that the agency had adopted in a 3-2 vote with the commissioners divided along partisan lines.
The issue of seeking relief in individual arbitration versus class action whether in arbitration or in court may seem like the extra-credit question on a civil procedure exam. But the employer-dictated prohibition against any class or collective action can effectively prevent an employee from seeking any relief whatsoever.
The employees in Epic Systems and Ernst & Young claimed that the companies had wrongfully classified them as exempt from the overtime provisions of the Fair Labor Standards Act (FLSA) and sought to file class action suits in federal court on behalf of all other similarly situated employees. Business interests rail about the abuses of class actions, but as a practical matter employment law attorneys are unlikely to take on an FLSA case just to win a few hundred or maybe a few thousand dollars for an individual worker improperly denied overtime pay.
The Roberts Court has continued the legal trend that first emerged under Chief Justice William H. Rehnquist of allowing the Federal Arbitration Act to take precedence over legal remedies allowed under other federal or state laws. Many of the decisions came on 5-4 votes with the justices divided along the usual conservative-liberal lines. The late justice Antonin Scalia was the most outspoken of the conservatives in criticizing the supposed abuses of class actions and defending the supposed advantages of arbitration.
The labor law issue simmered at the NLRB for several years until several cases reached federal courts of appeals with decisions that resulted in a conflict between circuits: the Seventh and Ninth Circuits siding with employees in Epic Systems and Ernst & Young respectively and the Fifth Circuit ruling against the NLRB in Murphy Oil.
Under the Obama administration, the solicitor general's office represented the NLRB in urging the justices to back the agency's position. In June, however, the solicitor general's office filed a new brief — "after the change in administration" — rejecting the agency's position. The NLRB did not give "adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the FAA," the brief stated.
For Trump, the change in position continued the trend of siding with business interests on regulatory issues over the forgotten American workers that he claimed in his campaign as his base. In other contexts, the administration has rejected an Obama era policy aimed at extending overtime protections to an estimated 4 million U.S. workers. Greenhouse also noted that the administration postponed rules to protect workers from silica dust; scrapped rules to require federal contractors to disclose labor law violations; and indicated likely rejection of the so-called "fiduciary rule" to require Wall Street to manage retirement funds in workers' best interests.
In the Times, Greenhouse's article appeared under the headline, "Is Trump Really Pro-Worker?" Trump's tweets to the contrary notwithstanding, the answer is a resounding no.
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