Justice Department v. NLRB

When Epic Systems Corp v. Lewis (consolidated with Ernst & Young v. Morris and NLRB v. Murphy Oil) goes to oral argument at the US Supreme Court on October 2, we will have the rare treat of watching the US Solicitor General arguing in favor of the employers and the NLRB's General Counsel arguing in favor of the NLRB and the employees. The Court granted motions for divided argument today [Order], so these two government lawyers will each be sharing one-half hour of argument time with lawyers representing other parties. So, lots of lawyers.

This odd happening comes about simply because the Justice Department switched sides after the presidential election. DOJ originally filed a petition for certiorari [Petition] on behalf of the NLRB, and then later filed an amicus brief [Brief] arguing against the NLRB. [Video: 2:09 minutes]

The cases raise these issues:

Whether it's an unfair labor practice for an employer to require employees to agree not to bring a class-action or collective-action case - either in litigation or in arbitration.

Whether the Federal Arbitration Act compels enforcement of an employment arbitration agreement that prohibits employees from bringing class-action or collective-action cases.

Another odd twist is that by the end of this week the NLRB will be back in the hands of the Republicans (due to the Senate's confirmation of Republican William Emanuel today), and the new Board clearly will not support the D.R. Horton (NLRB 2012) holding that requiring employees to sign class-action waivers interferes with employees' right to engage in concerted activities. Of course, current NLRB General Counsel Richard Francis Griffin Jr. is a Democrat, and he can keep the fight going in the court system - but only until he is replaced in November by Republican Peter Robb.

For more background, see this from SCOTUSblog: Argument preview: Reconciling class waivers and the National Labor Relations Act (UPDATED).

[For a list of current employment law cases, see Supreme Court Watch.]