Justice Ruth Bader Ginsburg understood that unequal power is a workplace reality
Among the many important legacies Justice Ruth Bader Ginsburg leaves behind is a critical labor law legacy that shines a light on the inequality of bargaining power between employees and employers.
One particular Ginsburg dissent is now driving a movement to shatter the notion that employees and employers have equal bargaining power.
In 2018, Ginsburg highlighted the inherent power imbalance in employment contracts as the key fault line between liberal and conservative legal opinion on employment regulation in her dissent in Epic Systems v. Lewis. By a 5-4 majority, the Supreme Court held that an employer may lawfully require its employees to agree, as a condition of employment, to take all employment-related disputes to private arbitration on an individual basis, and to waive their right to participate in a class action or class arbitration, i.e. collective action.
The majority opinion, written by Justice Gorsuch, framed the issue as one of ”freedom to contract” between equal parties: “Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?”
In her dissent, Ginsburg wrote:
“To explain why the Court’s decision is egregiously wrong, I first refer to the extreme imbalance once prevalent in our nation’s workplaces, and Congress’ aim in the NLGA [Norris-LaGuardia Act] and the NLRA [National Labor Relations Act] to place employers and employees on a more equal footing.”
https://www.epi.org/blog/rbg-unequal-power/