Remember last May's decision in Epic Systems v. Lewis? There, the Supreme Court held that the Federal Arbitration Act demands enforcement of arbitration clauses against workers, including class-action and collective-action waivers contained in arbitration clauses, notwithstanding the Act's savings clause and the National Labor Relations Act's protection for workers to engage in "concerted activities."
This article by Dave Jamieson tells a predictable tale (predictable, that is, in the wake of Epic Systems) of 2,800 low-wage workers who were tossed from a collective suit against Chipotle — which allegedly has not paid the workers their lawful wages. The federal judge handling the case said that, in light of Epic Systems, he was “compelled to find that the class and collective action waiver in Chipotle’s Arbitration Agreement does not violate [the NRLA] or render the Agreement unenforceable.”
Epic Systems and other Federal Arbitration Act precedents that make it nearly impossible for workers and ordinary consumers to vindicate their rights are premised on fictional consent — the notion that by signing take-it-or-leave-it contracts to buy goods and services, or to work at low-wage jobs, they have agreed to give up their rights to go to court or to enforce their rights collectively (in court or in arbitration). Jamieson quotes the deposition of Chipotle's director of compliance, David Gottlieb, who gives you an idea of what Chipotle means by consent:
If you [a prospective Chipotle employee] choose not to agree to the arbitration agreement, for example, once you have been given notice and an opportunity to look at it, read it, ask any questions, download it, save it, whatever you want to do ― if you don’t, then you don’t have to be an employee.
The workers' lawyer stressed a different aspect of the "agreement" with Chipotle: that “virtually none of the” the workers even remembered signing it.
Very interesting. I wonder whether that kind of contractual countermeasure would be enforceable. Cf. Model Rule 5.6(b).
Interestingly, the court rejected Chipotle’s argument that the lawyers in the putative collective action should be barred from representing individual claimants in arbitration. (I wonder whether employers will begin to include contractual countermeasures to protect against dozens of individual employee filings in arbitration by the same counsel.)