On October 2, 2017, the Supreme Court of the United States heard three combined cases raising an important legal question that likely will affect innumerable employment contracts used in this country. The Court heard Epic Systems Corp. v. Lewis, Ernst & Young, LLP v. Morris and National Labor Relations Board (NLRB) v. Murphy Oil (USA). The Court’s ruling in these three cases will determine the validity of arbitration clauses that waive or prohibit the employee from pursuing collective, class or joint actions in court or in arbitration proceedings.
The lower courts have differed on this question, and the oral argument before the Supreme Court indicates the Justices are likely to split in what could turn out to be a closely decided ruling, perhaps with a thin majority of Justices (i.e., potentially a 5-4 decision). No one knows for sure how the case will be finally decided by the Supreme Court, and predictions about how the Justices will rule, at this juncture, are premature at best. The questioning that occurred during oral argument seems to suggest Continue reading