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This Year’s Supreme Court Attack on Workers

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If there’s one thing that unites all Republicans is that workers should have no rights at all. That leads to the annual chipping away of labor rights at the Supreme Court. This year looks like a doozy.

In a case that will be heard this week, Viking River Cruises, Inc. v. Moriana, the Court is deciding whether to gut the California Private Attorneys General Act (PAGA), a law passed in 2003. Instead of a traditional lawsuit where an employee might sue their employer over a personal injury, PAGA allows employees to sue over any breach of the California Labor Code—essentially allowing them to stand in the shoes of state government to enforce the state’s labor law. If the plaintiff wins, the state keeps 75 percent of civil penalties assessed by the Court, while the plaintiff keeps 25 percent plus attorney’s fees. In 2019, that added up to $88 million in PAGA penalties collected by the state. 

With limited staffing in state agencies, these private enforcement actions and companies’ desire to avoid new lawsuits have “helped to shift California’s corporate culture toward compliance,” according to an analysis by the UCLA Labor Center.

A sign of PAGA’s effectiveness is the list of national business organizations, from the U.S. Chamber of Commerce to the National Retail Federation to Uber, all submitting amicus briefs asking the Court to eviscerate the law. With multiple states debating enacting their own versions of PAGA, business lobbies obviously want to kill the law before it spreads.

The reason PAGA is such a critical enforcement tool is because of the rise of mandatory arbitration, where employees are forced to give up their right to go to Court to enforce wage or discrimination disputes as a condition of employment. Instead, they must have any dispute decided by an arbitrator chosen by the employer.

Just over twenty years ago, the Supreme Court in a narrow 5-4 decision used a bizarre reading of the 1925 Federal Arbitration Act to allow employers to force employees into arbitration. The result is that 80 of the Fortune 100 companies now include an arbitration clause in their employment contracts. In such private tribunals, workers win far less often and the median damages awarded are just $36,500, compared with $86,000 in state courts and $176,000 in federal court, an Economic Policy Institute analysis found. Worse, because of their secrecy, arbitration decisions settling sexual harassment, race discrimination, and other employer abuses largely disappear from the public record.

The perceived difficulty of winning arbitration cases typically translates into fewer claims being filed. “We know that there’s a claim suppression effect,” says Cathy Ruckelshaus at the National Employment Law Project (NELP), which is organizing an amicus brief in the Viking River Cruises case on behalf of workers’ rights advocates. 

In California, due to the widespread use of forced arbitration, “PAGA has become the only option for many workers,” argues Caitlin Vega, who led the California AFL-CIO’s lobbying work for much of the last two decades.

In short, the Supreme Court is going to keep making sure the states can do whatever they want to do all the racisms but if the states want to ensure workers rights, I mean what is this communism? Such is contemporary Republican jurisprudence–based on the solid constitutional principle of Fuck Democrats.

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