This is the question with which the Supreme Court began its new term last week. The Seventh Circuit has said no, workers cannot be compelled to sign away their rights to bring class action lawsuits when they get hired because it violates section 7 of the National Labor Relations Act. That law was passed in the 1930’s to protect workers and establishes a legal framework for collective bargaining by unions. It preceded the advent of the class action by decades. But in the past the Supreme Court has decided that using the courts to protect workers is a form of “concerted activity” which is explicitly protected. Employers cannot require workers to give up their rights to participate in “concerted” action as a condition of employment.
So far so good, at least as it relates to joining a union or participating in litigation involving collective bargaining. But it is definitely a stretch to say this also covers any sort of class action lawsuit even ones in non-unionized businesses. Yet the modern class action is a widely-used tool to address wrongs to large numbers of people in the workplace (Title VII, FLSA, and sometimes RICO) and are commonly used by employees to get relief for an entire workforce in one big lawsuit. If it were up to me, I would amend the NLRA to expressly protect this from employers who force employees to give away their rights in an employment contract. But Congress has not done so, and if it did try to amend the law in this way, would undoubtedly run into fierce opposition from Republicans and the Trump administration.
It seems from the oral argument that the four more liberal justices believe sec. 7 applies to class actions. They want to affirm the Seventh Circuit which so ruled. Three of the conservative-identified justices leaned in the opposite direction. So, as is often the case Justice Kennedy would seem to have the deciding vote. In business cases he typically sides with the conservatives. This is clearly such a case. Yet he also expressed concern for the rights of employees. Generally, Kennedy is an unprincipled jurist. Aside from his support for gay rights (which this case does not involve), one cannot discern any consistent principles in his opinions. It is not possible to predict how he will come out here. I am hoping for a pleasant surprise from the court which is now right-of-center and where workers will typically lose.