In Epic Systems v. Lewis, the Supreme Court held that employers may force their employees to resolve disputes in individual arbitration proceedings. The case presented a legal issue involving an apparent conflict between two federal statutes, the Federal Arbitration Act (“FAA”) and the NLRA. The FAA requires courts to enforce private arbitration agreements The NLRA protects employees’ rights to engage in “concerted activities for the purpose of . . . mutual aid or protection.”
In 2012, the Board held that an employer violates Section 8(a)(1) of the NLRA when it requires employees, as a condition of employment, to sign an agreement that precludes them from filing class claims against the employer in court, or in arbitration proceedings. The Board noted that it “has long held, with uniform judicial approval, that” Section 7 of the Act – which vests employees with the right to engage in concerted activities for “mutual aid or protection” – protects “employees’ ability to join together to pursue workplace grievances, including through litigation.” The Board also found its ruling did not conflict with the FAA because the FAA’s savings clause provides that arbitration agreements are not enforceable if there are grounds that “exist at law or in equity for the revocation of any contract.”
Thereafter, a group of employees brought a class action under the Fair Labor Standards Act. The employer moved to dismiss the case because the employees had signed individual arbitration agreements. The U.S. Court of Appeals for the Seventh Circuit, agreeing with the Board, refused to enforce the arbitration agreement on the grounds that it violated the NLRA and was not enforceable under the FAA.
In a 5-4 decision, the
Supreme Court reversed the Seventh Circuit and held employers can lawfully
require employees to sign individual arbitration agreements as a condition of
employment. Justice Gorsuch, who
authored the opinion for the majority, noted that under the FAA courts should presumptively enforce
arbitration agreements. He then interpreted the NLRA’s term “other concerted
activities” narrowly and concluded Section
7 does not protect collective litigation. Justice Ginsburg, writing for the
dissent, emphasized that Congress enacted the NLRA
to address the power imbalance between workers and employers, and that
collective litigation is one of the ways in which workers can associate to
improve their working conditions. She also urged Congress to overturn the
Court’s decision: “Congressional correction of the Court’s elevation of the FAA over workers’ rights to act in concert is
urgently in order.”
 Epic Systems v. Lewis, 138 S. Ct. 1612, 200 L. Ed. 2d 889, 211 LRRM (BNA) 3061 (2018).
 9 U.S.C. §§ 1 et seq.
 29 U.S.C. § 157.
 D.R. Horton, Inc., 357 NLRB 2277, 192 LRRM (BNA) 1137 (2012).
 Id. at 2278.
 9 U.S.C. § 2.
 Lewis v. Epic Systems Corp., 823 F.3d 1147, 206 LRRM (BNA) 3293 (7th Cir. 2016).