It has gotten harder for American workers to bring lawsuits against their employers in recent years. It could get harder still.
The Supreme Court will rule on a number of cases this term over whether workers can bring disputes against their employers in a court of law or if they will have to submit to arbitration behind closed doors.
Arbitration proceedings are generally favored by employers because they can be more efficient and save money. Labor advocates say arbitration tilts in favor of big business and shields employers from having to make public embarrassing information about hostile work environments and pay disparities.
It sounds technical, but the difference between a court hearing and an arbitration matters. The average arbitration can be completed in six months, versus multiple years for a federal jury trial, according to Julianna Thomas McCabe, who heads the national class-action practice group at the law firm Carlton Fields.
More than half of nonunion private-sector employers now use mandatory arbitration procedures — and the rate is even higher as the size of the business increases.
"The major driving force behind arbitration agreements is an effort to reduce the cost of litigation, and particularly with class actions," said Lauren Novak, who specializes in labor and employment issues and is a partner at the law firm Schiff Hardin.
In three cases, including two set for argument on Monday, the justices will decide when exactly employees can be forced into arbitration. Having three cases on the docket suggests "the court is extremely interested in this issue," McCabe said.
The cases are being closely watched by big business as well as worker advocates. The U.S. Chamber of Commerce, a conservative business group that spent more money on lobbying this cycle than any other organization in the country, has filed briefs in each of the cases calling on the court to side in favor of forced arbitration.
Observers largely expect that business will continue its string of victories at the court, given the deference the justices under Chief Justice John Roberts have shown toward employers. In a particularly dramatic illustration in May, the court handed down a landmark 5-4 ruling deciding that employers can force workers to sign agreements compelling them to handle disputes through arbitration.