Stephen Gottlieb: Workers’ Rights Dishonored Again By The Supreme Court’s Conservative Majority

May 29, 2018

Once again, President Trump’s nominee to the Supreme Court demonstrates the Court’s and the president’s hostility to worker rights. In cases testing whether companies can require their employees to sign agreements that abandon any right to go to court or bring class actions, Gorsuch’s opinion for the Court sides with the companies. That prevents employees from pooling their resources when contemplating expensive litigation.

The Norris-LaGuardia Act, passed in 1932, protects workers’ right to collective action on labor issues:

the individual unorganized worker is commonly helpless to exercise actual liberty of contract . . . , wherefore, . . . it is necessary . . . that he shall be free from the interference, restraint, or coercion of employers . . . in … concerted activities for … mutual aid or protection . . . .

The National Labor Relations Act, passed and signed in 1937, reaffirms that

“[e]mployees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Both statutes were passed with the understanding that “the individual unorganized worker is commonly helpless” against employers. But the Court held that the Federal Arbitration Act, passed and signed in 1925, protects arbitration agreements. Usually, later statutes are held to overrule or limit earlier ones, not the other way around. So the Court decided that the later statute didn’t mean to limit the Arbitration Act. Of course, Gorsuch and the Court didn’t and couldn’t know that. What they threw at us was pure preference – anything that helps companies against their employees fits their labor policy. Gorsuch and this Court doesn’t read the law, as they like to claim; they make it. And they have been consistently turning against workers’ rights.

There was a time in this country when workers were completely dependent on their employers. They were required to live in company homes, buy from company stores, and were paid in scrip that was only honored by the company. Thus any attempt to leave left employees bereft of everything.

This Court will not be satisfied until workers have to sign away their right to seek better jobs, leave town, or buy their goods anywhere but the company store. There is a term for that, serfdom, and it is still practiced in some countries. When the Tsar of Russia freed the Russian serfs, the change there rivaled the end of slavery here. We needn’t go into all the other rights that serfdom gave the masters, like the right to violate the women. Serfdom stank. The claim that employers can get anything they want by putting it into a contract shreds all our rights.

We’ve been seeing that lately in the sexual abuse claims that have been made since the Harvey Weinstein revelations. Employers didn’t put those claims into the contracts but their right to reject applicants or fire people at will worked for a long time.

Law exists to protect people – except that the U.S. Supreme Court with Gorsuch solidifying its position doesn’t think ordinary people deserve any rights. In my view, it’s the Court that deserves none.

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

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