Since the 1980s, the Supreme Court has consistently found arbitration agreements in employment contracts to be enforceable, citing a strong national policy favoring arbitration. This line of cases came to its apogee in 2018 with Epic Systems Corp. v. Lewis. The Court held that the statutory right to engage in concerted activities for the purpose of mutual aid or protection did not confer upon employees the right to bring class actions against their employer when they had signed an arbitration agreement with a collective action waiver. While the Court’s decision was widely criticized in the academic community, it sent a clear message to employers: you can stay out of court simply by having employees sign an arbitration agreement.
Arbitration agreements and class action waivers call to mind the yellow dog contracts of the early twentieth century, which prohibited employees from joining a union as a condition of employment. Both arbitration clauses and yellow dog contracts significantly restrict an employee’s bargaining power against his employer and run contrary to the free labor economy envisioned by the drafters of the Thirteenth Amendment. The current Court is unlikely to find that arbitration agreements and class action waivers create a system of involuntary servitude, but there are other measures state and local governments can take to help workers vindicate their statutory rights. For example, states and cities could pass laws similar to California’s Private Attorneys General Act, which authorizes employees to sue on behalf of the state for labor-code violations committed against them and other employees. Whatever solutions are implemented, they must ensure that they combat the modern-day yellow dog contract and help bring the Thirteenth Amendment’s vision of free labor closer to fruition.