Legal Advocacy
Employees Should Be Allowed to Go to Court to Fight Discrimination
AARP Fights Limits on Employees’ Court Access to Challenge Discrimination
AARP Foundation Litigation attorneys filed AARP’s “friend of the court” brief urging the U.S. Supreme Court to rule that mandatory arbitration clauses in union-negotiated collective bargaining agreements (CBAs) cannot limit employees’ ability to go to court to enforce their federal statutory rights. In the case at hand, employees alleged violations of the federal Age Discrimination in Employment Act (ADEA).
Background
Federal labor law recognizes the right of unions to negotiate CBAs on behalf of union members, even though those agreements may (in exchange for better pay or working conditions) limit the individual rights of employees. There are some workers’ rights that CBAs cannot limit, however, such as their civil rights and fundamental labor rights such as those provided by minimum wage and overtime laws.
At issue in 14 Penn Plaza LLC v. Pyett is whether a CBA can require that employees resort to binding arbitration, instead of court, to enforce their federal statutory rights. If the answer is “yes,” then the ability of employees to enforce rights, such as the right to be free from age discrimination, that are supposed to be beyond the purview of CBAs, will be thwarted because arbitration deprives employees of many rights and protections that they have in court.
The dispute
In 2003, union members represented by Local 32BJ of the Service Employees International Union who worked as night watchmen at an office building owned by Pennsylvania Building Company and 14 Penn Plaza LLC (the “Company”) were reassigned to different locations and less desirable positions as night porters and light duty cleaners after the Company hired another contractor to provide security personnel, including night watchmen. The employees filed grievances with the union arguing that as the only employees over age 50, they were wrongfully transferred in violation of the CBA’s prohibition of age discrimination. The Company invoked a clause in the CBA that required that all workplace complaints – including discrimination claims – be resolved in mandatory arbitration rather than court. Shortly after arbitration began, however, the union declined to pursue the age discrimination claims. According to the employees, the union’s counsel told them that since the union had consented to the hiring of the outside security company, it could not contest their replacement as night watchmen with the other company’s employees. The employees filed a complaint against the Company with the Equal Opportunity Employment Commission, and then filed suit in federal court.
The Company argued that the employees had to pursue their case in arbitration, but the trial court and an appeals court agreed with the workers that CBAs cannot be used to waive workers’ rights to go to court to enforce federal statutory rights. According to the trial court, “even a clear and unmistakable union-negotiated waiver of a right to litigate certain federal and state statutory claims in a judicial forum is unenforceable.” The U.S. Supreme Court granted the Company’s petition to review that decision.
AARP’s brief
AARP joined a brief filed by the National Employment Lawyers Association and the American Association for Justice, supporting the employees’ argument that arbitration clauses is CBAs are unenforceable if they waive the employee’s right to go to court to adjudicate federal statutory discrimination claims.
Arbitration is an out-of-court dispute resolution process that was designed for disputes between commercial parties with equal sophistication and bargaining power. Arbitration deprives employees of the right to have their case heard by an impartial judge or jury. In addition, arbitration often is much more expensive than a court action and does not provide the same procedural protections or substantive rights as court proceedings. For example, employees have limited rights to access documents necessary to prove their case, arbitrators may not have to follow rules of evidence or prior court decisions, and employees have extremely limited rights to appeal an arbitrator’s decision (they cannot even appeal if arbitrators make errors of law). Moreover, unlike court decisions, arbitration decisions generally are confidential so that no one else can learn that someone else has filed an action against the same employer for the same conduct. Arbitration thus places individuals at a distinct disadvantage against more powerful corporations, which are including arbitration clauses in an increasing number of contracts, including those related to employment, nursing home admission, credit cards and loans, cell phones, among other products and services.
The “friend of the court” brief argues that federal labor laws, not the Federal Arbitration Act, governs whether a CBA can waive union members’ rights to go to court to resolve statutory claims, and notes that prior U.S. Supreme Court decisions have made it clear that CBAs cannot waive workers’ rights to a judicial forum to enforce rights created by Congress. The brief also argues that a union’s authority to act for its members is limited to actions in furtherance of members’ collective rights and those that involve labor relations issues, such as specific working conditions and the right to strike. That authority does not extend to the right to waive individual members’ rights to go to court to enforce fundamental civil rights and statutory minimum employment standards. A union must take into account the interests of all its members, and a union’s interest in enforcing the terms of a CBA is not identical to, and may even conflict with, the interests of the individual employee who has a grievance (as occurred in this case). While the Supreme Court has recognized the enforceability of arbitration clauses in some employment contracts entered into by individuals, the brief urges the Court not to extend that principle to CBAs since they are not negotiated by individuals.
Contact persons:
Laurie McCann
lmccann@aarp.org
Deborah Zuckerman
dzuckerman@aarp.org
(202) 434-2060
December 1, 2008