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Ernst & Young LLP v. Stephen Morris

In quick succession, the Supreme Court received four petitions for certiorari raising the question whether arbitration agreements that ban collective proceedings violate the federal labor laws’ protection of concerted worker action. The petitions reveal an irreconcilable conflict among the circuits, and the issue is pending in at least five more circuits. The intercircuit conflict and the importance of the issue make it likely that the Court will agree that the issue merits review. The question for the Court is not so much whether to grant certiorari as which petition to grant.

Public Citizen submitted an amicus brief in support of the NLRB’s petition to explain why this case is the most appropriate of the four cases for resolving the conflict among the circuits over whether arbitration agreements that bar class actions infringe workers’ right to engage in concerted activity under the National Labor Relations Act. The Court granted three of the petitions, including the NLRB’s petition.

Public Citizen then submitted an amicus brief on the merits, explaining that the FAA does not require enforcement of provisions of an arbitration agreement that infringe workers’ statutory rights to engage in concerted activity and that the FAA is best read together with the NLRA and NLGA to preserve workers’ right to engage in concerted activity. The Supreme Court, however, held that employers can use mandatory arbitration agreements to block employee class actions.