The National Employment Lawyers Association (“NELA”) filed an amicus brief in AT&T Mobility v. Concepcion, which is pending before the U.S. Supreme Court. That case presents the important question of whether states retain authority to apply general principles of contract interpretation to class action waivers found in arbitration agreements. The NELA brief says that the use of such waivers is becoming increasingly common in the labor and employment context, particularly in so-called “take it or leave it” contracts that employees are required to sign in exchange for employment. This undermines the important role that the class action device serves in vindicating claims of workplace discrimination, retaliation and wage & hour violations.
This excerpt is from the summary of the argument: Class action waivers can work to exculpate defendants from liability, rendering such waivers unconscionable under states’ generally applicable rules of contract law. In the labor and employment context, waivers can represent a serious impediment to the vindication of workplace rights in two important ways. First, they create a practical barrier to the enforcement of rights. Most employees do not pursue claims individually for various reasons. The employees may fear retaliation, they may not be able to find counsel willing to pursue relatively small claims on an individual basis, or they simply may not know that they have been the victims of illegal conduct. Second, because so few employees are willing or able to pursue their claims individually, class action waivers threaten our nation’s ability to protect important rights in the workplace, including the right to equal employment opportunity and payment of the minimum wage and overtime.
Oral argument is set to take place in this case on Tuesday, November 9, 2010. You can see a copy of the amicus brief here: NELA AT&T v. Concepion Amicus Brief