NLRB, Trump administration prepare opposing arguments in SCOTUS arbitration case

Dive Brief:

The U.S. Supreme Court will hear arguments Monday in a trio of cases involving arbitration. Specifically, the Court has agreed to decide "[w]hether an agreement that requires an employer and an employee to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, is enforceable under the Federal Arbitration Act, notwithstanding the provisions of the National Labor Relations Act."
One of the cases it will review directly challenged a National Labor Relations Board (NLRB) ruling that found these waivers unenforceable. The Board petitioned the Supreme Court in late 2016 and, as is generally the case when the government goes to the Supreme Court, the U.S. Department of Justice's Office of the Solicitor General represented the Board, according to SCOTUSblog. After the election, however, the administration reversed its stance.
The Supreme Court will hear not only from the employers involved on Monday, but also from both NLRB and DOJ separately, creating a bit of "drama" around the case, SCOTUSblog says.

Dive Insight:

It's certainly strange to have an independent federal agency opposing the rest of the administration in a court case, but this isn't the only place it's happening. Earlier this week in the 2nd U.S. Circuit Court of Appeals, the U.S. Equal Employment Opportunity Commission opposed the solicitor's office in oral arguments in a suit alleging that federal law protects employees from discrimination based on their sexual orientation. The courts of appeal are already split on the issue and the parties may well find themselves at the Supreme Court before too long.

As for the arbitration question, employers are generally hoping that the High Court will approve the use of collective action waivers, allowing them to continue to require that workers arbitrate claims, and that they do so individually. This tactic has proved particularly useful in wage and hour claims, where back pay and damages in collective actions can add up quickly.

Employees, however, are arguing that such waivers infringe on their statutory rights. The National Labor Relations Act grants them the ability to work together to improve working conditions. The Federal Arbitration Act, however, values arbitration as a way to resolve claims outside of court and generally protects their enforceability. The Supreme Court will have to reconcile those competing interests.

Employers may have some clarity on this issue in just a few weeks.