Delayed arguments in class-action waiver case

Epic Systems Corp v. Lewis is the most important employment law case of the current session of the US Supreme Court, and the Court told the lawyers today that oral arguments will be put off until the next session which begins in October. This means a decision might not come out until early 2018.

The Court doesn't announce its reasons for when it schedules oral arguments, but I'll be bold enough to speculate. It's a combination of (1) this is an extremely important case that will have an impact on thousands of employers and millions of employees, (2) for a big case the Court likes to have a full boat of nine Justices, and Circuit Judge Neil Gorsuch - the President's nominee - should be confirmed before October. There's also the possibility that the Court already sees itself split 4-4, which would create a big problem because there are three consolidated cases with conflicting results and a 4-4 decision would affirm all of them.

Class action waivers – NLRA v. FAA: Ever since D.R. Horton (NLRB 2012), the NLRB has said that it's an unfair labor practice for an employer to require employees to agree that they will not bring a class-action or collective-action case, either in litigation or in arbitration. The NLRB's jurisdiction includes non-union workplaces in the private sector, so there's an impact on most private sector employees.

Meanwhile, the Federal Arbitration Act requires courts to enforce arbitration agreements as written.

As you might expect, federal circuit courts are split. Some say D.R. Horton is simply wrong. Some say the FAA compels enforcement of an employment arbitration agreement that prohibits employees from bringing a class-arbitration, notwithstanding D.R. Horton. Others won't enforce such agreements because they interfere with employees' right "to engage in … concerted activities for the purpose of … mutual aid or protection."

The Supreme Court has consolidated three cases that raise these issues.

One is Ernst & Young v. Morris [9th Circuit opinion] [Supreme Court briefs]  ("an employer violates the National Labor Relations Act by requiring employees to sign an agreement precluding them from bringing, in any forum, a concerted legal claim regarding wages, hours, and terms of conditions of employment.")

The others are NLRB v. Murphy Oil [5th Circuit opinion] [Supreme Court briefs] (refusing to enforce the NLRB's D.R. Horton rule) and Epic Systems Corp v. Lewis [7th Circuit opinion] [Supreme Court briefs] (class action waiver in arbitration agreement violates NLRA and is unenforceable under the FAA).

The Court neither granted nor denied one other petition in Patterson v. Raymours Furniture Co  [Cert petition] [2nd Circuit opinion] [Supreme Court briefs] (enforcing class action waiver in arbitration agreement).

The Court is delaying oral arguments until October at the earliest, so a decision might not come out until early 2018.