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[Essay]

Labor’s Last Stand

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Having already determined in Citizens United that corporations are people, the Supreme Court decided in May that people, at least working people of vulnerable status, can be prevented from acting as corporations. In three consolidated cases involving disputed wage claims, the Court ruled that employers can force workers to accept individual arbitration instead of joining together in class-action lawsuits. Writing for the majority, Trump-appointed justice Neil Gorsuch maintained that the 1925 Federal Arbitration Act was more pertinent to the cases at hand than the 1935 National Labor Relations Act, which asserts that workers have a right to “concerted activities” for the purpose of “mutual aid or protection.”

[caption id="attachment_270125" align="aligncenter" width="630"] Illustrations by Richard Mia[/caption]

In actuality, as this ruling and others before and since have made abundantly clear, workers don’t have any rights at all except those they wrest through disciplined organization and militant struggle. Although the Supreme Court’s decision does not affect workers in unions, it does amount to an ominous, ideologically motivated attack on the principle of collective action from which unions derive.

As expected, Justice Ruth Bader Ginsburg spoke for the dissent. Noting that in 1992 only 2 percent of non-unionized employers used mandatory arbitration agreements, while 54 percent use them now, Ginsburg said that by upholding these “arm-twisted” and “take-it-or-leave-it” contracts, the Court had all but guaranteed “the under-enforcement of federal and state statutes designed to advance the well-being of vulnerable workers,” a weakening that some attorneys worry will extend to cases of discrimination and sexual harassment. Gorsuch dismissed Ginsburg’s objections as “apocalyptic.”

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is a contributing editor of Harper’s Magazine. His essay “Labor’s Schoolhouse” appeared in the July 2017 issue and received the Debra E. Bernhardt Labor Journalism Award.

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