September 10, 2019

Re: H.R. 2749, the Restoring Justice for Workers Act

Dear Representative,

            On behalf of the 24 national unions in the Department for Professional Employees, AFL-CIO (DPE), I strongly urge you to support H.R. 2749, the Restoring Justice for Workers Act. In 2018, in a 5-4 decision, the U.S. Supreme Court held in Epic Systems v. Lewis that employers may lawfully require employees to agree, as a condition of employment, to pursue work-related claims in individual arbitrations. H.R. 2749 would restore the right of working people to join together to pursue employment and civil rights claims in court. 

            Today more than 60 million employees, including millions of professionals, are subject to mandatory employment arbitration.[1] Many of these people also are prohibited by class action waivers from pursuing collective legal action, even in the form of arbitration. Simply in order to work, these individuals are locked into an employer-created dispute resolution process that research shows regularly produces employer-favorable outcomes if they want to enforce statutory rights, including the Fair Labor Standards Act’s wage and hour protections and Title VII of the Civil Rights Act’s anti-discrimination prohibitions.[2] The fact that female employees and African-American employees are the most likely to be subject to mandatory employment arbitration makes the problem that much more concerning.[3]

            It is important to understand that mandatory employment arbitration is not the same as the arbitration procedures found in the collective bargaining agreements of DPE affiliates and other labor unions. Unlike with mandatory employment arbitration, employers negotiate labor arbitration procedures with employees and their unions, ensuring that employees’ due process rights are protected and the procedure is fair to both sides. Further, labor arbitration procedures are intended for disagreements over the provisions of a private contract, not the enforcement of statutory rights. 

            Congressional action is urgently needed. With the U.S. Supreme Court’s pro-employer decision in Epic Systems, we are likely to see a dramatic expansion of mandatory employment arbitration, particularly in provisions that prevent employees from taking collective legal action. We know this because employers previously expanded their use of mandatory employment arbitration after another employer-friendly U.S. Supreme Court decision in a 2011 case that upheld the use of class action waivers in mandatory arbitration provisions.[4] The U.S. Supreme Court’s Epic Systems decision removes any lingering doubt for employers considering mandating employment arbitration on their workforces.

            The U.S. Supreme Court’s Epic Systems decision blessed a rigged system that leaves working people without a fair opportunity to enforce their statutory rights. Fortunately Congress has the opportunity to right this wrong by making clear that employees need not give up their right to the U.S. court system, and their right to pursue justice together, when they go to work. It is for this reason that I ask you to co-sponsor H.R. 2749, and vote yes when the legislation comes before the U.S. House of Representatives for a vote.  

              If you have any questions, please contact DPE Assistant to the President/Legislative Director Michael Wasser at (202) 638-0320 x. 119

 Sincerely,

Jennifer Dorning, President

[1] Colvin, Alexander J.S. (2018, Apr. 6). The growing use of mandatory arbitration. Washington, DC: Economic Policy Institute. Available here: https://www.epi.org/files/pdf/144131.pdf.

[2] Stone, Katherine W. and Alexander J.S. Colvin. (2015, Dec. 7). The arbitration epidemic. Washington, DC: Economic Policy Institute. Available here: https://www.epi.org/publication/the-arbitration-epidemic/.

[3] Colvin 2018

[4] Ibid.