The Supreme Court held on Monday that lower courts must enforce individual arbitration clauses in employment contracts—a ruling that effectively allows companies to compel workers to pursue employment-related claims in one-on-one closed-door proceedings that are not subject to substantive judicial review. Union leaders and other workers’ rights activists are understandably dismayed by the 5–4 result in Epic Systems v. Lewis, which is the latest in a line of Supreme Court decisions extending the 1925 Federal Arbitration Act far beyond its original scope. But this week’s loss need not spell the end of the effort to protect workers from the effects of the most onerous arbitration clauses. Instead, it shifts the focus from the national level to the states.
Under other circumstances, the logical response to a decision like this one would be to lobby Congress to change the law. To that end, Justice Ruth Bader Ginsburg—joined in dissent by three of her colleagues—wrote that “[c]ongressional correction” of the court’s “egregiously wrong” decision is “urgently in order.” Richard Trumka, president of the AFL-CIO, likewise said that Congress should “immediately enact” legislation that overrides the Epic Systems ruling. But that sense of immediacy is likely to be lost on a Congress that so far has been more interested in rolling back workplace protections and clearing the way for greater use of arbitration provisions than in standing up for workers’ interests. And in the unlikely event that Congress does pass legislation to undo Monday’s decision, the bill will likely die on the desk of President Donald Trump, whose administration has gone out of its way to support employers seeking to enforce individual arbitration clauses.
If Congress won’t act, states and localities can and should. Subnational governments have several policy tools they can use to counteract some of the most pernicious consequences of individual arbitration mandates. Governors, state lawmakers, mayors, and city council members can take concrete steps in the coming months to protect their constituents from the fallout of Monday’s decision. And workers’ rights advocates ought to demand action from their state and local leaders.
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