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An Epic infringement on the ‘right to work’

May 25th, 2018  |  Lisa Milam

This is gnawing at me, as we sit here sandwiched between two significant Supreme Court labor decisions.

The Epic Systems Corp. v. Lewis decision issued earlier this week emphatically allows employers to impose mandatory, individual-and-not-class arbitration as a condition of employment, notwithstanding any NLRA-endowed right of employees to engage in protected, concerted activity.

The impending Janus v. AFSCME, Council 31 decision, most prognosticators expect, will hasten the demise of “fair share” fees, if not the demise of the public employee unions that rely upon them. These fees have been prohibited by 27 states already under the guise of “right to work” legislation (in August, Missouri may become the 28th).

These “right to work” laws are premised on the notion that no worker should be compelled to join a union as a condition of employment–or to pay a union for the services they are compelled to provide to non-members. As a matter of scope, the problem is fairly limited—as of 2017, only 6.5 percent of private-sector workers are unionized, whether by choice or compulsion, and the number of unionized workplaces decreases steadily every year.

By comparison, 53 percent of employers require their employees to consent to mandatory arbitration, take-it-or-leave-it, and as Justice Ginsburg quite reasonably predicts in her Epic Systems dissent, that number will now rise sharply.

These arbitration provisions are framed as “agreements,” of course, two equal parties mutually deciding to resolve their disputes outside of court. If the employee doesn’t wish to “agree,” he or she is free to work elsewhere, as one management attorney reminded me this week.

But where are they to work, if a majority of employers compel them to give up their day in court?

If a worker wishes to avoid unionization, the overwhelming majority of workplaces remain open to him. For a worker wishing to preserve her right of access to the courts, more than half the nation’s workplaces are foreclosed. And she will have far fewer options, soon enough.

Compulsory unionism or compulsory arbitration? Which is the bigger deprivation of the “right to work”?