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The Supreme Court Just Declared Open Season on Workers in America

A high court decision Monday makes it easier for your boss to steal from you—and is part of a broad anti-union wave.

Matt Taylor

Matt Taylor

For a long time now, it's been a safe bet that when a Republican wins the White House, things will get worse for workers, and especially bad for people who have the gall to belong to a labor union. This wasn't always true: In the 1950s, Republican Dwight Eisenhower presided over the peak of US labor-union density—a.k.a. the percent of Americans who belonged to a union—and Richard Nixon actually considered some kind of guaranteed income scheme to cover everyone in the country. But at least since Ronald Reagan's notorious sacking of the air traffic controllers union in 1981—when nearly 13,000 (illegally) striking workers were fired—the conservative movement has made no secret of its hatred for collective bargaining, protections for workers, and everything else the labor movement stands for.

On Monday, the right won another battle in its decades-long war on labor in a Supreme Court case that has implications for everyone in America—not just the people who belong to unions.



In a 5-4 decision on the case Epic Systems Corp. v Lewis, the Supreme Court ruled that workers do not have the right to band together to file class-action lawsuits over conditions at their jobs. If they sign a "forced" or "binding" arbitration agreement—as millions of people do all the time, from Wall Street to fast food, as a condition of their employment—they have permanently foreclosed their privilege to join similar workers in court. That matters because the legal costs of filing an individual suit can be prohibitive—that is, hiring a lawyer is too expensive. And even if they did have the money, these workers are required to rely on a third-party arbitrator, which while theoretically neutral, in practice is often tight with the employers or corporate bosses workers are fighting.

The decision looks like a big, bright green light for everything from wage theft to predatory conduct in the workplace. Some 54 percent of nonunion bosses use binding arbitration, part of a broader trend exhaustively documented by the New York Times in a 2015 series on the agreements, which often serve as tools for the wealthiest and most powerful people in the country to quietly make problems—like workers—go away. And while corruption in politics is a bipartisan game, this trend toward rigging the legal system on behalf of bosses is a distinctly Republican project. Before he became the conservative movement's favorite jurist, as the Times reported, Chief Justice John Roberts actually sued on behalf of Discover Bank in hopes of establishing a ban on some class-actions in California. And the author of the 5-4 decision Roberts joined Monday was Neil Gorsuch, Donald Trump's far-right Supreme Court pick known for his enmity toward unions and workers' rights.

"This is even bigger than just unions," US Congresswoman Pramila Jayapal of Washington state told me in an interview. "It's why Congresswoman [Cheri] Bustos and I and Senators [Kirsten] Gillibrand and [Lindsey] Graham introduced our forced arbitration around sexual harassment bill for this exact reason: Workers, without even knowing, were signing away their ability to sue around sexual harassment incidents. This just expands that substantially and essentially says: Yeah, you can force your workers to sign it, they may not even know what they might get into, they're not going to be able to bring any kind of class-action lawsuit."

But wait, it gets worse. Around the same time they heard arguments in this case, Supreme Court justices considered Janus vs. AFSCME, which could pull the rug out from public-sector (government) unions across America in the coming weeks. By gutting the ability of these unions to compel members to pay dues—or what conservatives call giving people the "right to work" without paying for union benefits—the court is expected to torpedo the already-weak labor movement's ability to function.

To be clear, this isn't just about unions spending money on TV ads in political campaigns—Mark Janus, the plaintiff and child-support specialist for the Illinois state government, never had his union dues go to obviously political operations like that. Instead, his problem was with the idea that he had to help pay for his union to bargain collectively on his behalf. The requirement non-union members like him pay a fee was intended to deal with the "free-rider" problem of workers benefitting from working under union contracts without doing anything to help their union negotiate those same deals. But Janus (along with the bevy of conservative mega-donors in his corner) is expected to win a 5-4 victory, which, if it comes, will be thanks at least in part to Trump's boy Gorsuch.

That decision, like the one on Monday, will affect you regardless of whether you or anyone you know belongs to a union. One analysis, co-authored by a Columbia political scientist and cited by the Times, suggested Democrats' share of the presidential vote would drop by roughly 3.5 percent if "right to work" went national. That's because Democrats overwhelmingly rely on organized labor to carry out electioneering activities like reminding people to go to the polls ahead of local and national contests.

"Two of them in quick succession is potentially an extraordinary blow to the ability of working people to defend their interests," Craig Becker, general counsel to the AFL CIO—the umbrella labor organization that includes VICE writers and editors like myself—told me in an interview.

Like other labor lawyers I spoke to, Becker expected employers who don't already have them in place to go all-in on binding arbitration clauses—regardless of their workers' union membership. Why not? While some of the plaintiffs in the cases decided by the Supreme Court on Monday were "low-paid people being deprived of relatively small sums of money," as Becker put it, others had worked as accountants at blue-chip firms like Ernst & Young.

Increasingly, the war on unions is being revealed for what it really is: A war on people who have to work for a living.

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