When you’ve got ‘em down, keep ‘em down.

By Frank Wessling

That could be the alley brawl version of a U.S. Supreme Court decision handed down May 21.

In a workers’ rights case titled Epic Systems vs. Lewis, a 5-4 majority ruled that nonunion workers with a grievance about pay would have to face their employer only 1 to 1 in arbitration. Class action lawsuits not allowed. The court majority used the precedent of two corporations contesting each other as a justifying analogy — as if two gorillas arm wrestling is comparable to a gorilla and squirrel matchup.

The Epic Systems case involved a group of workers claiming that they had been cheated out of pay due them according to their employment agreement. It isn’t unusual for employers to manipulate pay systems to their advantage, especially in low-wage and high-turnover businesses. A recent study found that an estimated $3 billion was kept from workers by pay theft each year in only three big American cities.

As the percentage of workers belonging to unions declined over the last 40 years, the incidence and amount of such thievery has grown in the nonunion workplace. The amount per worker is usually small, and the process for attempting a recovery daunting. Under common arbitration agreements, there is no recourse if the boss offers nothing or only a small fraction of the claimed pay shortage. Take it or leave it is the rule. And the boss picks and pays the arbitrator.

The cost of a lawyer to sue for recovery of, say, $95, or even $500 in dispute would be far more than anything gained by one person. Which is why employees of Epic brought their separate claims together and tried a class action claim in court. But the Supreme Court, with all three of its female members dissenting, said “No.” You can’t use the courts that way. You can only stand in line one by one.

Perhaps women have a deeper understanding of power imbalance.

Two days after the Epic case announcement, on May 24, we heard at Mass this excerpt from the Letter of James, chapter 5: “Come now, you rich, weep and wail over your impending miseries…. Behold, the wages you withheld from the workers who harvested your fields are crying aloud; and the cries have reached the ears of the Lord of hosts.”

In the court opinion, Justice Neil Gorsuch tortured the history of labor-management relations and law since the 1920s to reach its conclusion. At the end, he said, in effect, we could do no other. As wrong as that was, according to Justice Ruth Bader Ginsburg’s strong minority opinion and in the opinion of a great many constitutional experts, Gorsuch at least offered a faint ray of light at the end. Congress can change the law, he noted.

If that’s what it takes to establish equity in the American workplace, voters this fall must give us representatives who want fairness and justice for the little person.

(Former News Editor Frank Wessling lives in Davenport.)

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