 OK, good afternoon, everyone. We're going to go ahead and get started. Welcome to the Economic Policy Institute. I'm Saline McNicholas, the Director of Labor Law and Policy here at EPI. Thanks so much for joining us this afternoon for a really important discussion on the growing use of mandatory arbitration and class and collective action waivers in employment. We've got a phenomenal panel here today. We're going to begin our discussion with a review of a new EPI paper by Professor Alex Colvin. The paper expands on his earlier work on the use of mandatory arbitration agreements by non-union private sector employers. He's got some fantastic new demographic data on the workers who are subject to mandatory arbitration, as well as some employer and industry data that's new as well. We're then going to examine the impact of mandatory arbitration and class and collective action waivers on workers themselves. So what does it really mean for a worker to be subject to mandatory arbitration? What if she isn't paid fairly? What if she experiences sex discrimination or harassment on the job? What does mandatory arbitration really mean for her? We're going to hear about the Murphy Oil case that's currently before the Supreme Court. And we're also going to talk about some policy solutions that are underway in the states. So with that, I won't take up any more of our time. I'll go ahead and introduce our panel. So Professor Alex Colvin is the Associate Dean for Academic Affairs, Diversity, and Faculty Development, and the Martin F. Scheinman Professor of Conflict Resolution at the ILR school at Cornell University. He's an associate member of Cornell Law Faculty as well. Kaylee Gao joined the National Employment Law Project in 2017 as a staff attorney. And she focuses her work on policies that improve economic security for low wage workers and the contingent workforce. Prior to joining NELP, Kaylee worked in private practice representing unions and workers. And she was also a legal fellow at SCIU. Sunu Chandy is the legal director at the National Women's Law Center. Before joining the center, she served as the deputy director for Civil Rights Division with the US Department of Health and Human Services. She's also served as the general counsel of the DC Office of Human Rights and was a federal attorney with the EEOC, where she litigated class Civil Rights Employment Matters for 15 years. Next, we have Sharon Block, who's the executive director of the Labor and Work Life Program at Harvard Law School. Prior to this, Sharon served as the principal deputy assistant secretary for policy at the Department of Labor. And she was senior counsel to Secretary Perez. And she's also served as a member of the National Labor Relations Board. And then we have Kate Hamaji, who's a research analyst at the Center for Popular Democracy, where she conducts research that advances racial justice, economic justice, and voting rights, and democracy campaigns. She's worked extensively on CPD's efforts to combat mandatory arbitration. And with that, I will turn it over to Professor Colvin. Thanks very much. So when we talk about mandatory arbitration, we've been having these vigorous policy debates going on for quite a while. It's been around in the law for about a quarter century since Supreme Court decided Gilmore and Interstate Johnson Lane, that these agreements are enforceable. But we didn't really know how many of them there are or how common they've become for workers today. We know that if you've got a cell phone, almost all of us have signed mandatory arbitration agreements with class action waivers in our cell phone contracts, AGT, Verizon, T-Mobile has them. Thanks to the CFPB, we know that most of us in our credit cards have also agreed to mandatory arbitration with a class action waiver. But we didn't know whether this extended to the employment world as well. We had some indications about 20 years ago. The GAO did a study that found, at that point, 20 years ago, maybe 7% of employers were requiring their employees to do mandatory arbitration. Then about 15 years ago, I did some industry studies that suggested maybe 20% of employees about that point in time were being subject to mandatory arbitration. But we really haven't known how big a deal this is, how important this is for workers today, until we've been able to do the current study where we're really looking broadly at how widespread, how much of an impact is mandatory arbitration for employment rights. For this study, did a national level survey of employers. Surveying employers, because employers, essentially, are the ones who decide whether or not you're going to be subject to mandatory arbitration or not. They impose it on their workforces or not. And frankly, you can survey employees about this, because most employees don't realize they're subject to mandatory arbitration. If you talk to employees, they don't remember that five years ago when they were hired, they signed something in the stack of paperwork that was presented to them when they started their job. So we're surveying employers, finding out what their practices are. Did the survey last year, got about 627 responses, complete data on the employers. So 47% response rate for those of you who are survey nerds like I am. This was exciting to get a response rate of this level over the telephone survey these days. Bottom line finding from it is that 53.9% of the employers surveyed have mandatory arbitration procedures, over half. That's the biggest takeaway from this study. Now, it's most private sector non-union workers are subject to mandatory arbitration, 60 million if you extrapolate out to the whole population. That's a lot of workers that are covered by this. A lot of them also include class action waivers. About 40% of the mandatory arbitration agreements also include class action waivers. That's 24.7 million workers who are subject to class action waivers. One would anticipate this may go up. As we know, we're discussing on the panel, the Murphy Oil case coming down the road may confirm that this is something enforceable, in which case you might anticipate that this is going to increase, that the employers doing this are going to add in the class action waivers if they haven't already. Now, the survey allows us to break down who exactly it is who is subject to mandatory arbitration. Where's it most likely to be used? So few key findings here. First, larger employers. Larger employers are more likely to use mandatory arbitration, 65% of them. Why is that? Well, we can't expect that. They're more sophisticated typically in terms of their HR practices. They have more sophisticated employer side counsel. They tend to take advantage of opportunities to protect themselves against employment lawsuits more quickly than smaller employers. I would anticipate this probably means we're going to see continued growth because we often see practices that large employers adopt the first. Other smaller and mid-sized employers are going to start copying them and adopting this too. So this is sort of a leading indicator. We also find variation across the country. So interestingly, California, Texas, and North Carolina amongst the larger states were the ones that had the highest rate of mandatory arbitration, close to 70% in each of these three states. And obviously, California and Texas, the two largest states with high usage rates there. But we find actually across all of the largest 12 states in the country by population, it's 40% or more. This is something that's happening everywhere in the country. It's not restricted to only certain states. We're finding it in a range of different states. Also find that workplaces that are lower wage tend to be more likely to use mandatory arbitration. 60%, 4.5% of them are using it. And that's under $13 an hour average wage workplaces. That's, I think, pretty important because one of the things we've seen as trends in employment litigation is that wage an hour cases have been really the fastest growing area of litigation. So minimum wage, overtime litigation has really been exploding. Obviously, with the Fight for 15 movement having more and more success, we're seeing more attention to those wage an hour cases. These are the workplaces where we're also seeing it be more likely that they're going to be subject to mandatory arbitration. And those lawsuits being diverted into arbitration. And they're often class actions. These are a classic situation where a class action is really useful in a wage an hour case involving large groups of minimum wage workers or workers who are denied break time. So they're particularly likely to be subject to mandatory arbitration. We also find it being used a lot in certain industries. It's used across the board in almost every industry at fairly high levels. But we find, interestingly, particularly industries that tend to have more predominantly female workforces and more predominantly African-American workforces so that the proportion of female workers and African-American workers recovered by mandatory arbitration are higher than the general population. So these groups are ones that are more likely to be finding that their potential cases, sexual harassment cases, race discrimination cases, any kind of employment discrimination case are more likely to be subject to mandatory arbitration and being pushed into this private forum. We're finding overall, though, is that mandatory arbitration is really spread dramatically in the employment realm. Once upon a time, I think 10, 15, 20 years ago, we might have thought this was something that affected maybe small segments of the work for certain select employers who were trying this thing out, seeing if it worked for them to defeat the pressure of lawsuits. That picture has to change now. What the survey shows is this is much more widespread now. A lot of these procedures are being introduced recently. 40% of them were introduced in the last five years. Since we started having class action waivers being enforced more and more, we found more and more mentor arbitration agreements with these class action waivers. This is more common now than having the right of access to the courts. We have to change how we think about employment rights, employment law. And hopefully, we'll continue to discuss that on the panel when we hear from the others. Hi. So I'm just going to give an overview of how workers on the ground are experiencing this. If you're one of the 60 million workers today who is subject to a forced arbitration agreement, what does arbitration look like for you and what are the big problems there? And we're using, I think, forced arbitration and mandatory arbitration interchangeably. So I'll just give you a visual, since forced arbitration is such an abstract concept. Normally, forced arbitration happens in a conference room. There's the arbitrator, the person who's making the decisions. They may or may not be a lawyer. And then there's the parties and their lawyers. There's no jury. There's no judge. And there's no public access. So what is it that happens in this conference room that's such a problem for working people today? I'm going to touch on three things. One, it's rigged. Two, it's secret. And three, you have to go it alone. So it's rigged sounds maybe a little extreme, but it's essentially a court where your opponent gets to write the rules, pick the judge, and not only do they pick the judge, but they're the ones who pay the judge. So not surprisingly, studies show that workers who are bringing claims in forced arbitration tend to win less often than those bringing claims in court. And even when they do win, they win lower amounts. So this isn't surprising when you think about it because in forced arbitration, plaintiffs will come and go, but it's the employers who are the repeat players. The employers are there deciding whether or not this arbitrator is going to get more work. So the incentives are built in there for there to be a bias. And arbitrators have indeed reported that this bias does influence their decision making. So there's a judicial fiction that arbitration in court are equally fair forums, but common sense tells us otherwise and the empirical evidence supports that. Forced arbitration is also usually happening in secret. So it's not open court. There's no public complaint. There's no public discovery documents. There's no trial on the record. So no reporter is gonna be looking through these materials and writing splashy headlines. And often that's exactly the appeal of why employers are choosing to have forced arbitration policies. So this is a problem for your average worker who maybe is having a problem and I don't know that Susie down the hallway is having the same problem. She's bringing a claim, but I never hear about it. There's no news story. I don't get to see her evidence. It's also a problem more broadly for our rule of law because these repeat corporate misbehaviors are able to happen and they're swept under the rug. The public doesn't know about them. Reporters don't know about them. Taxpayers, lawmakers, shareholders, repeat systemic misbehavior can be happening behind closed doors and we don't have any idea. And finally, I'll mention that you have to go it alone. So we know today that almost 25 million workers who are subject to forced arbitration are also subject to some sort of class waiver. So we often call it a class waiver but it's not just class actions sometimes that are barred. A worker might be barred from bringing a lawsuit with any other person. So me and Susie are facing the same kind of discrimination. We wanna hire a lawyer together, show our evidence together, but we're not able to do that. We have to go one by one into this private conference room. So that's a problem for us as workers individually. It's harder to prove our cases. We can't bring our evidence together. It also has a systemic effect where litigation is very cost and resource intensive. So a lot of times if workers are not able to bring their cases together, they're not able to bring their cases at all. So that points to one of the big problems outside the conference room. So the unfairness of what happens in the conference room is really having an effect on who even gets to the conference room. We see that claim suppression is a huge problem. The numbers demonstrate this. Professor Cynthia Esslin has a recent study which is actually cited in Professor Colvin's paper. So she does a comparison of cases filed in court and in forced arbitration. So if these forums were actually, even playing fields are equally fair, we would imagine that the rates of claims filed would be similar. But of course that's not true. The numbers for forced arbitration are much, much lower. So Professor Esslin estimates that looking at workers who are subject to forced arbitration and looking at those, the number we would expect to file based on the rates of filing we see in court, of those, only 2% are actually filing claims. So that means 98% of the workers we would expect to be filing claims are never making it to forced arbitration at all. They're never entering that courtroom, sorry, that conference room because of how unfair that setting is. So at NELP, we're known for a lot of work on baseline labor standards, minimum wage, ban the box, paid sick. And one point that we really take away is that a law on the books doesn't even matter, hardly even matters if workers aren't able to enforce it. So forced arbitration really then functions as sort of a backdoor way for corporations to be able to repeal the laws that are on the books. So that's why, you know, at NELP, forced arbitration is such a big priority issue and we're so glad that today's study really illuminates what a deep problem it is. Let's go. Hi, thanks everyone. Thank you so much for having the National Women's Law Center here. As I expected when we did our preparation, Kaylee, as she so beautifully did, said all the things and I was gonna say them and it's worse for women and women of color. And I thought that would be sort of boring so I thought of other pieces and angles I could bring to this. First of all, I did my paper on mandatory arbitration in the mid-90s at Northeastern Law School for my Women in Law Seminar and it was this like weird issue that affected, I think from your numbers, maybe 7% or 10% of the workers and all the things I put in that paper that Kaylee just outlined are still true today, but worse because it's for over half of the working population. And so we're here to talk about why that's a problem and also I wanna put it in the framework of access to justice more broadly. I just saw Earth Justice has a tracker of all the bills that are right now pending or working its way through the system that limit access to the courts. And it could be in the ADA context where for public accommodations, you have to go through all these extra steps before saying you're violating the law and give buildings just more time to fix a problem, which then means you don't have to fix the problem. You just wait until it's come before you. Two weeks ago, I heard at American University at a poverty law conference a note about filing fees and just to sort of problematize slightly, court is not a picnic and we all know that. And so the conference room is bad, it's secret, court is hard too. And I learned for the first time that filing fees, federal district judges have discretion and it's not even by circuit and it's not even by district. But you just sort of think, does this person need filing fee waived or not? So I just hope that we do some activism around that. And someone from the Shriver Center did a really, Andrew Hammond did a really good paper on just some really easy practical fixes for things like that. Because the National Women's Law Center put together a legal network for gender equity and the Times Up Legal Defense Fund that we're working with to subsidize these cases because you actually do want a lawyer when you go to court and when you bring cases. So we have postcards on that. And I definitely want to say, let's think about how to make that world better too so that if it's half and half, we have these protections on both sides. But going back to what we're really supposed to be talking about, why mandatory arbitration is problematic for women and civil rights in the workplace. The kinds of claims that women have brought, whether it's disparate impact, pattern or practice, hostile work environment, these all really need to show a pattern and the whole piece of the evidence. And so to have individuals bringing these claims one off, one off, one off is a real way to lose them. Particularly right now with sexual harassment, hostile work environment is about the totality of the situation. And if you and Susie go together, you have much more of a chance of saying this same manager harassed us in these 20 ways versus each person going one by one because it may not reach severe or pervasive, which is the standard for federal sexual harassment, which we think is too high and there needs to be policy work on that. And in New York it's slightly better. But unless you sow conduct that is so egregious, a one off grabbing is probably not gonna be illegal. And certainly sexual jokes, you would need a bunch of them to show a hostile work environment. So if you can bring five, 10 hundreds of people as we've done when I was at EOC to show the environment, you have a much better chance of showing the totality of circumstances as hostile to women. So those are just a few examples and you can look through decades of case law. But I really wanted to share something that Sherilyn Eiffel said at the Impact Fund, Progressive Litigators Conference, just a couple months ago. And she said that civil rights litigators are magic because we turn a private isolated problem into a social movement and to precedent setting cases. And I thought that was so powerful because otherwise it's just one off problems and it's not a structural systemic issue that we're all facing. So we are trying to tell the real story and mandatory arbitration is saying, oh, that's just a bad apple. That's just one bad guy. That's just, those men all just got promotions and raises. And we need to show the pattern for that, which it is with the press in the court and in the public. So those are just a few examples that I wanted to give. And I wanna just breed a short paragraph from our amicus brief and Murphy oil that the National Women's Law Center signed on to and we worked on it with the Milstein firm and NAACP LDF and the Impact Fund were leading that up. And in that, they said the mutually corroborating testimony of coworkers can be critical to plaintiff's ability to meet their burden of providing that the alleged harassing conduct was not isolated or sporadic. It can illuminate the context of the behavior can establish why the conduct should be deemed objectively harassing. For example, if a manager regularly proposition female subordinates behind closed doors, joint legal actions can power victims to bring this to light and overcome this usual he said, she said defense that is so typical in sex harassment. And similarly, we filed an amicus brief in the Sterling matter along with the Debbie Katz's firm and Carolyn Wheeler who we worked with and Cohen Milstein is representing the workers in that case, it's a pay and promotion sex discrimination case. And we also filed this brief because there is mandatory arbitration, they're in mandatory arbitration and there are all these procedural fights about who can be in and out of the class. And so now the employer is going to court, imagine to say the arbitrator can't say all these women should be in the class. I mean the irony of it, right? And we're saying no, no, no, you're making us be in this arbitration, let it be a class, right? And so our brief lines out all the reasons why the class claim is important. And beyond that, I just wanna highlight that we are working so much right now in sex harassment, as we've said, these issues are so pertinent to those claims. And if there are those of you in the audience who are lawyers who can take up sex harassment claims, please go to our website and sign up for the legal network for gender equity. If you know of individuals or worker centers or groups where people need lawyers to bring these claims in court because you don't wanna go to EEOC on your own either or to court on your own. You can sign up to get a lawyer. And we also now have the Times Up Legal Defense Fund where we're subsidizing certain cases. Lowage workers cases where predominantly male, dominated and so on. So these are cases we really wanna support. So thank you so much for having me. Great, thank you. And I wanna add my thanks for being part of today and for bringing attention to this incredibly important issue. So I'm gonna pick up a little bit from my colleague to my right and talk about the Murphy Oil case because for a brief shining moment, we did have actually a mechanism to push back against this trend that Professor Colvin laid out and not against the entire trend but at least against one of the most pernicious aspects of this phenomenon, which is the embedding of the prohibition on collective or class actions within mandatory arbitration agreements. So to step back a little bit, this lever came from the National Labor Relations Board from a very important decision that was issued by the Obama Board in 2012. And it's sometimes surprising to people that the National Labor Relations Act actually has sort of plays in this space because many people associate the National Labor Relations Act with the right to join a union and to be able to have an election and to protect those rights. But in fact, there's a really important, as most of you probably know, a second prong to the protections under the National Labor Relations Act, which is the protection for the right to engage in concerted activity, to not have to go it alone, even separate and apart from whether you're trying to join a union or are in a union. And that's where these issues came together. The NLRB and the Supreme Court for decades have interpreted that right, that protection for that right to engage in concerted activity very broadly. It's really about how workers want to come together and assert their voice and their power in the workplace. So as more employers require workers to sign away their right to class actions or collective action lawsuits, that phenomenon is bumping up against the NLRA's protection for concerted activity because really what is a class or collective legal action but workers standing together to assert their legal rights? It is obviously inherently collective. So in 2012, the Obama Board decided a case called DR Horton where they said that, yes, in fact, it seemed kind of obvious, but the joining together in a lawsuit about something related to your workplace is concerted activity. And so employers cannot interfere with your right to do that. I don't think many employers have actually disagreed with that basic premise, but where the complication has come in is employers have asserted that a different statute, the Federal Arbitration Act, trumps the NLRA's protection for that coming together because the FAA is a statute also of longstanding, which was passed to protect the arbitration process. There was concern, Congress had a concern that arbitration agreement, the courts were not particularly favorable to arbitration agreements were finding ways around them, so they passed a statute that said, no, really, arbitration agreements are okay and courts, you should accord them respect. They didn't say, though, that it's the most important law ever in the history of all laws. You know, they also passed a statute that said you have a right to engage in concerted activity and that's where the tension has been since the D.R. Horton case came out. And so there's been different decisions in the courts of appeals about who has the right answer, does the FAA prevail or does the rights protected under the National Labor Relations Act prevail. And as I think we all predicted this case did end up before the Supreme Court in a case called Murphy Oil this term. So the facts of Murphy Oil are Sheila Hopson and three of her colleagues who worked for Murphy Oil claimed that the employer was making them work off the books. And so they were not getting paid for all the time that they were working, which if true would be a violation of the Fair Labor Standards Act. So again, this isn't technically a class action under the Fair Labor Standards Act. You engage in a collective action. They had been required to sign an arbitration agreement and the employer said they had to arbitrate those cases on an individual basis because it had one of these waivers of the right to engage in a class or collective action. So Ms. Hopson filed an unfair labor practice charge with the NLRB. The board sided with her, case has gone up, the Fifth Circuit agreed with the employer, the case went up to the Supreme Court. When the case first went to the court, it was during the Obama administration, the government came in on the side of Ms. Hopson, on the side of the board's decision to defend the board's decision. Then we had an election and things changed. The Justice Department, then the Trump administration decided to switch sides, a fairly unusual occurrence, but less unusual now, whatever we are 15 months into the Trump administration. So they literally abandoned the worker and took the side of the company, which then left the board unrepresented. And so in a really unusual circumstance, the board was allowed to represent themselves before the Supreme Court, so you literally had the federal government on both sides of this litigation before the Supreme Court, you had the NLRB general counsel who was a whole, his term continued, I hate that phrase, hold over from the Obama. He was serving his term, which continued into the Trump administration. So he defended the board's decision on the side of the employee, arguing against the US Justice Department. We are awaiting a decision. To be frank, I don't know too many people, I mean, to be Debbie Downer, but that's sort of the theme of the day, who are particularly optimistic about what that decision will be, but I think the expectation is it will be one of the late spring into June decisions. I think Professor Colvin hinted at this, this is unbelievably important if you care about these decisions. There will be no obstacle to employers requiring employees to sign away their rights to stand together. This will be a major rollback of our understanding of what it means to protect collective activity. And I would imagine there will be conversations among management lawyers that it is the equivalent of malpractice. If the court sides with the Justice Department and with Murphy Oil, it will be the equivalent of malpractice not to require your employees to sign out, to waive these rights. And absent legislation to sort of fix this problem about the question between the FAA and the NLRA, there really will be nothing that people can do to stop that. And this is, I wanted just to sort of convey the importance it's not just about, and I think we'll talk a little bit maybe more about this later, but this isn't just about adjudicating particular statutory rights. There were a lot of really great briefs filed in Murphy Oil, and I would recommend the National Women's Law Center brief that they filed with the NAACP and a number of other organizations. But one that particularly caught my attention that I would recommend that you look at is a brief that was filed by Susan Fowler. And that name might ring a bell. She was the Uber employee who wrote the blog post that sort of at first exposed, at least to a broader public, the really toxic working conditions at Uber. And she wrote a lot about, especially how women at Uber were treated in the kinds of sexual harassment and sexual discrimination that she and her colleagues were subject to. And so the point of the brief is to highlight the fact that Uber aggressively uses mandatory arbitration and class action waivers. And so what that meant to her as somebody who recognized these conditions and how limited that she felt in her ability to address that situation. There's a fascinating section in the brief where she makes the argument that in the 21st century when 94% of the private sector is not represented by unions, that class and collective actions are one of the most important ways that workers have to stand together. And my colleague at Harvard, Ben Sax, wrote a great law review article a few years ago about employment rights as labor rights, about how often collective legal actions can be the catalyst for even more collective action among workers. And so there's really a lot on the line in Murphy Oil and we can all sit across our fingers and can see how that's gonna go. Thank you. Hi. So as you've heard, the spread of forced arbitration and the impending decision in Murphy Oil really threatens to decimate the private enforcement infrastructure that's so critical to making sure that workers' rights are meaningful. And while we should have reform at the federal level, there should be a ban on the use of forced arbitration clauses more broadly. Given the political moment that we're in, we also need to be thinking really critically about pro-worker policy that we can move in states. And there have been some state legislators that are contemplating creative ways to expand public enforcement in order to try to help fill the void and accountability that's been caused by this aggressive, corporate use of forced arbitration clauses. And so the policy model that some states are looking to move authorizes private individuals to bring representative enforcement action on behalf of the state and on behalf of all affected workers. And California was actually the first state to apply this model to its labor code. And so in 2004, it passed the Private Attorney Generals Act, otherwise known as PAGA. And what PAGA essentially does is it allows employees to stand in the shoes of the state agency and bring a representative action on behalf of all employees in order to collect pretty significant penalties for most violations in the labor code. And so after a successful suit or settlement, 25% of recovered penalties actually go to the workers and the remaining 75% go to the state agency to expand public enforcement capacity. And so what's powerful about PAGA is that courts have ruled that the right to bring a collective public enforcement action cannot be waived in arbitration, right? So it's a way that workers can receive some amount of compensation while at the same time building the capacity of public enforcement. And in California, PAGA's actually seen some pretty promising results. There's been actually a dramatic impact on compliance with labor law that was previously unenforced before PAGA. And so for example, since 1919, California workers have had the right to suitable seating, but this was something that was really largely ignored on the part of employers. And so thousands of workers, mostly low wage and in the retail and banking industries had to stand for the duration of their shifts. But after PAGA's enactment, employers that failed to provide suitable seating actually had to have had to pay millions of dollars to the state and to workers. And just for an example, Bank of America settled for $15 million and 10 million of that went actually to the state agency to build enforcement capacity. So I'll just say a couple of words about campaigns that are moving in states. There's a policy moving in Vermont actually today. I think as we speak, there's a hearing happening and there's a policy in New York. And there are also a few other states that are in the campaign planning phase but haven't made their campaigns public. And a couple of exciting things about these PAGA expansions are one, protections are being, sexual discrimination harassment can be added to PAGA. So it's something that can help embolden people who are impacted by things like the Me Too movement to bring their cases. And in some states, worker advocates and consumer advocates are actually banding together to form new coalitions to expand PAGA to the consumer side as well. And an example of that is in New York, the New York empire campaign is moving both a worker bill and a consumer bill concurrently. So I'll just end by saying that, even without this crisis of forced arbitration, it is critical that we're also always thinking about how to expand the enforcement of worker rights. And if there is any bright spot at all to the Murphy Oil decision, it's that it could serve to galvanize action at the state level to improve the enforcement of workplace standards that we know is so critical. Thanks so much, everyone, for your remarks. Elections absolutely have consequences and as Sharon alluded to, what's gone on with the Supreme Court, particularly in Murphy Oil, not unique to that case is certainly a testament to that. And I think just sort of picking up on your remarks, when I looked at the Solicitor General's brief and I think you made this point in an earlier piece that you wrote as well, the sort of argument that some forms of collective action are residual concerns to others, sort of suggests this notion that there's gonna be a hierarchy of evaluation of what kind of concerted activity actually gets protections and what types do not. And I think one of the great sort of takeaways from the, I'll hate to use this, but the Obama Board was sort of a re-energizing of concerted action outside of even the traditional union organizing context. And I know Sharon, decisions that you participated in moved the needle on that as well. So when you look at what's at stake with Murphy Oil, could you maybe talk a little bit about what that really means? If you look at an expansion of concerted activity as sort of a positive takeaway, what do we stand to lose with a sort of a bad Murphy Oil decision? Yeah, no, thanks for raising that happy point. Now, I mean, I will say, there's not, it is hard to be continually shocked by what's coming out of this administration, but I was truly shocked when I read the Murphy Oil brief because there was absolutely no reason for them to have to reach that question of whether there's a hierarchy of protections within the National Labor Relations Act. So clearly they were reaching out to put, to try to inject that issue into the case, whether that's because they think this is the right vehicle to do it, or they're just sort of putting the breadcrumbs down and they will eventually find other ways to bring other cases. But we all know that there are dog whistles that certain members of the Supreme Court hear differently than others. And so I think that's, in addition to just looking at sort of what the outcome in Murphy Oil is, I know one thing that I'll really be looking carefully for is how they deal with that aspect of the brief and whether there are concurrences or any recognition of that argument that the government made. And it's shocking and troubling because it really goes to the heart of how workers without a union can exercise power. Again, we all wish that those numbers were flipped and 94% of the private sector were in unions and this concerted activity piece was just a little afterthought the way that the SG's office seems to want to treat it, but the reality is that it isn't. And this is, for 94% of the private sector American workforce, engaging in concerted activity at least right now is their main means of protection. And so in the op-ed that you referred to that I did with Professor Sacks, we called it a profound threat to the continuing existence of any meaningful protection for concerted activity. And just so we, again, to make it concrete, we're talking about the kinds of activities that are protected under that prong are things like coordinating activity through a worker center, not a formal union, making appeals for solidarity on Facebook, standing around the water cooler and planning how to go together to talk to your boss about the fact that you think there's some injustice in the workplace. If you look at some of the cases that really established this right without ever suggesting that it was somehow residual or secondary, those cases had to do with walking off the job because of a safety threat or workers coming together to write an op-ed in the local newspaper against a right to work law. And the Supreme Court has said all of those kinds of things, the Supreme Court hasn't acted on each of those fact patterns but has said those are the kinds of activities that deserve protection. And so, again, with what's hopefully a dog whistle that will just bother us all but won't become a critical part of the court's decision, that is at risk. And I would add it hurts unions too because often these are the kinds of activities that workers start with where they get some success in acting collectively. That gets them some attention that maybe a union organizer sees and that flags that this might be a good workplace to try to organize. So this as bad as Murphy Oil is just on the issue that is literally presented before the court, there's sadly a potential for it to be much, much worse. And if it doesn't happen in this case, I would just ask everybody to just be attuned to whether this is something that this administration is gonna try to find other ways to move forward. Yes, Sunu. I also wanted to mention a mini bright spot with federal government agencies, at least as of now. EEOC is able to bring systemic litigation and represent, not represent workers but bring lawsuits that to the benefit of workers, even if there's a mandatory arbitration provision and this was a case called Waffle House in 2002 and it's not just that EEOC can bring the case for injunctive relief and for policy changes but actually for money for those people which surprised me and the rationale is that that money is a deterrent and that money is to punish employers and that money is to make a point. And so if the, I mean EEOC won't litigate usually one-off cases unless it's an underserved community or some other compelling precedent but that was in the legal unit in the New York office for 15 years and so we constantly cited EEOC as the master of our own case, don't tell us what to do because that language is written there by the Supreme Court and so that is one avenue. So if you know of systemic civil rights violations I would say sort of get a lawyer to draft the charge in a way that it picks up the eye of the legal unit and that's I think could be one vehicle for a few cases to go forward. Okay, great, thank you. And just picking up sort of off of this notion of there are enforcement agencies that do have power here and I think Kaylee gave us a great picture of what this means for an individual worker who's affected by this practice but I think the other piece of this is what does this do to enforcement agencies' efforts to combat these practices and I think the forever policy hill staffer in me also thinks about what you need to actually move legislation forward, the evidence of what the practices are in the workplace that need correction and I think this notion that everything is secret, it's without of the public view, not only does that rob the individual worker but it also dramatically impacts the ability of policy makers to be able to develop policies that in my view would be able to combat some of these practices. So I think we've got a wealth of experience between you and Sharon in terms of actually at these agencies that do some of this enforcement. I don't know if you have any thoughts on the impact of the secrecy element and what this does in terms of robbing meaningful enforcement practices and also open up to the panel just in terms of development of appropriate policy responses as well. I would just say we need to get the word out about Waffle House because I don't think any normal individual in a workplace, even if you probably don't know, you have this managerial arbitration agreement and then if you find out about it because you're thinking about pursuing your rights, I don't think in your wildest dreams you're gonna think, oh, but I could still go here, here or here. So I think number one, getting the word out on that as a possibility is probably really important, depending on what happens with the Supreme Court case, that will be really crucial as one step. Great, okay, and I'll ask one more question but then I won't monopolize the time and I'm just gonna come back to Professor Colvin's report. You mentioned this in your remarks but one of the findings that sort of stood out to me was yes, this is a nationwide problem but I guess and I am not the data nerd that you suggested but I think when I think about these things it makes a lot of sense that you would see employers in a state like California that provide where you have protections for the workforce that certainly exceed those for workers in North Carolina and yet there's sort of a split among the states where you see this uptake on the practice itself and so what should we make of that data just blind panic that this is absolutely gonna be the way it is no matter where you live or is there something in there that I'm missing? Yeah, that did actually surprise me a little bit as well. Though I had some hints that something was going on in Texas just from the high volume of arbitration cases in Texas and I was getting a lot of kind of word from plaintiff attorneys in Texas encountering this a lot and one of the things that sort of strikes me with the Texas environment is that it's not a very high employee rights state and it's certainly not a high union state but it has a very vigorous plaintiff bar and there's sort of a long history of back and forth. It's a center of the tort reform movement but that's probably because it has such a vigorous strong plaintiff bar and I think it kind of, I think it illustrates that having that kind of diffuse enforcement within a state can really have an effect. I mean, you see the backlash to it but that's because there's something pressing there and I think we do often miss what's gone to the state level picking up on Kate's point about that. We may need to think more now about kind of more state agency actions as well as kind of federal agency actions to the degree that arbitration's limiting what the plaintiff attorneys can do there but I think the plaintiff attorneys are an important part of the story here. Okay, great. Okay, so if anybody has questions I can keep going if we do not but we'll open it up if folks have a question or a comment right here, ma'am. And just because we're live streaming Zane will give you the mic and if you can just speak into that, thanks. So I'm curious if there are other stakeholders that should be part of this conversation. So for example, from the shareholder activist side, if things are happening in the workplace that are important to whether this is a good company, whether it's healthy practices, whether it's sustainable, whether there are sort of associated safety issues or other things, right? Would they be interested in how this is impacting them or from the sort of public perspective what we've seen on pay equity is a really effective mobilization of the public is that we care about these companies and what they're doing, right? So I'd be interested in sort of beyond the kind of labor side who are the other stakeholders who could be effective. And Sharon, do you want to? And maybe Kate, you can also talk about some stakeholders in the state campaigns as well. Yeah, okay. And Kate's probably better able to talk about this, but I think consumers are an obvious ally. And actually, I think with NELP we did some talking with consumer groups who also have felt this, the effect of arbitration, the Federal Arbitration Act. So they're an obvious ally. And I think there's just so much that's interesting about trying to encourage labor and consumer groups to work more closely together. Yeah, I think that's right, definitely consumers. And I think in New York in particular, the policy that started to move was, kind of came out of the wage theft campaigns that worker centers were focused very heavily on in New York. And so I feel like there's a large opportunity to connect what workers are experiencing on the ground every day to this kind of wonky policy issue in a pretty meaningful way. I think at the city level too, I know in New York City, there's been conversations about pressuring the city to stop doing business with corporate companies that use forced arbitration, because there's a lot of lack of transparency there too, and that's something that just ordinary citizens can call for. Great, thanks. Did you want to add anything? I was just going to talk about market pressure more generally and thinking about that at the local and state levels and who sort of who you do business with and looking at if these provisions exist, but also as consumers ourselves. Just go with me for this little parallel. I've been hearing a lot of organizations trying to hold events and the venues aren't accessible. And so I'm sure someone's working on this, but I have in my head why don't all our organizations say to those entities, we're not coming to you and we're not coming to you because of this. And how we just as individuals, not even as lawyers can use our dollars and our market power to make change. I mean, I was in high school doing apartheid and we weren't allowed to drink Coke or Pepsi and we weren't allowed to have grapes at home because of farm workers. Like I sort of grew up with these sort of using your dollars to speak your values. And I don't see, I'm sure people are doing it, but I'm not getting the message on what I'm supposed to be doing. So if we spread the word, I think I saw one of you had a thing with all the company's logos that have these or maybe some of the materials we pulled to show, here are all the corporations that have this and demand this, right? That would be easy enough to say, we're not coming to you anymore. Take it out. I mean, that's what we learned, right? Money talks. There's no time for that. Microsoft just backed off on their mantra arbitration because of the use in sexual harassment cases. So it could be a start. Let's do it, right here. Anybody else have any questions or comments? Okay, Michelle. Quick question. We're starting to see NDAs popping up. We're starting to see it even here in DC, restaurant corners and they're including, of course, forced arbitration. Kind of your thoughts on how that further stifles any worker who's facing sexual harassment. We're starting to see it in newspapers. Well, certain, I won't name names, but certain restaurant groups, they're having some big issues these days and they're trying to silence their workers through their NDAs and the workers are very scared to even come out and say these things that have been going on that are definitely systemic. So kind of questions on NDA side of it, too. Thank you. Anyone else want to? We're totally against that, obviously. You should be able to talk about what happens to you. Harassment, discrimination or otherwise. And the only slight nuance is if there is a settlement discussion and a worker wants to be private about it because that is important to her. In that situation, we're not against it, but anything else we would be really against that. I mean, it's just, I mean, and they're so broad, right? It's like you can't talk about any issues at work and I've even heard of employers sort of backdating them and saying, oh, I actually need this starting a year ago. Major problems. I mean, to me, it's also just, it's obviously just another way of inhibiting collective action, right? If you can't talk about what happened to you, you can't join together. You can't help discern those patterns that will help others who haven't settled or whatever adjudicated their cases yet. So it's, again, just this attack on the idea of workers acting collectively to have more power and to force them to go alone. Yeah, and I think in those situations, if someone is very nervous, and I think that's when people get really scared that they're gonna be violating something legal, I think you definitely wanna try to get a lawyer to walk you through that, but also going to a city or state or even a government agency on the federal level because those agencies aren't bound by this and it's completely against public policy to say that you can't talk to an agency about what happened to you. So that's, at least you'll have someone backing you if you're scared to do it on your own. Great, yeah, Kelly. And NDAs, like forced arbitration, sometimes the terms in them aren't legal, but they are effective at dissuading people from going after. So a lot of times employers, employment lawyers, management side attorneys are really pushing the bar with what they put in forced arbitration agreements, but a worker is looking at it and is saying it doesn't look like I can go to court or they bring it to a lawyer and the employment side lawyer, the employee side lawyer says, we might be able to win this, but we're not sure it's gonna be a big battle. So those things, as Sharon said, it really about stifling action. Great, thank you. Anyone else, any other comments? And I'm actually, Dan, do you have a question that you, I'll ask a question while other people come up with some other questions that they want to ask. So I might steal Dan's. Okay, so one of the things that when I am asked to talk about mandatory arbitration that comes up is this sort of competing interest of, well, is arbitration the enemy because there's arbitration in collective bargaining agreements and I think it's a distinction that sometimes gets sort of lost in this. And so I was hoping that one of the panels, maybe Sharon, can talk a little bit about how this is really different than arbitration in the sort of traditional collective bargaining context. Sure, I mean, I think it starts with how important it's been to rebrand this issue as forced arbitration. I mean, and that's really the key. If you have an arbitration clause in a collective bargaining agreement, it was not forced upon you, you bargained for it, presumably. You made a decision that it was in your interest to have access to this means of, which in that context can be a faster, more informal way of resolving workplace disputes. So that's clearly the first really big difference. I mean, the other difference is that you're not going it alone. You are by definition, if it is within your collective bargaining agreement, you are engaged in this process with your union literally beside you. And they actually have a duty under the law to deal with you fairly in the arbitration process. They have a duty of fair representation. So it's really antithetical to everything that's problematic about forced arbitration agreements that private sector non-union employees are subject to. Great, yeah. Yeah, just following on that point. I mean, I think the real distinction is that you're talking about something that's, in the union setting, it's really bilateral system. There's two parties that set up and run the system. And that's why it's fair because you have two equal parties. The mandatory arbitration setting, the forced arbitration process, you really have one side designs the whole system, pushes you into it. It's a unilateral system. And we could design an arbitration system that was fair and actually probably more favorable to employees than the federal courts, which have their current problems, right? I mean, Germany works councils use arbitration with their employers, but there you have a publicly established right to a works council that collectively represents the workers, right? So it works in a totally different setting, right? So the problem is it's unilateral, it's one-sided. Okay, and yes, Alvin, yeah. Alex, you might also want to mention the difference between a collective bargaining arbitrator who's chosen by both sides and needs to remain acceptable to both sides in order to have a career and an arbitrator who's chosen by an employer. Yeah, I mean, I think that's a really fundamental problem here is that you certainly get some labor arbitrators who will do employment arbitration cases, but we actually did a, I just surveyed with one of my PhD students a couple of years ago, we were surveying arbitrators who do employment cases and 60% of them, their career background is management side defense work. And half of them are only part-time arbitrators. They're not full-time neutrals. And mostly they're doing employer side work as their main job. So you imagine kind of going in front of somebody whose main job is representing employers and expecting them not to be influenced by that seems implausible. It doesn't look fair to the employee. I mean, for employment union contract arbitration, you can get out El Currie on El Currie and you can read at least some subset of them and they're public. And they have some presidential value and stuff. I don't know how it works in these forced arbitration, private arbitration. None of it I don't think is public or presidential but I'm curious how that works typically. Well, it's not presidential. You can get some of them but it varies, right? So, you know, some organizations like American Arbitration Association, you can get ahold of some of their decisions but others aren't. And that's, you know, one of the problems is that there's a lot of variation, right? There's like, you know, some organizations out there that, you know, I've never heard of when I sort of suddenly see them popping up in a case. I'm like, really, is this an actual organization? I have to sort of look it up and I sort of study this thing and you sort of discover, oh, it is, right? And then you get ones where there's no organization administering it and who knows what's happening in those cases, right? So I think that's really a fundamental problem. And I think it gets at something too that your question gets at another sort of key difference is that in a collective bargaining group, you really are building the law of that particular workplace. And you are interacting with each other over and over again and so, you know, you can see that both sides can have an interest in creating a mechanism by which you have some kind of consistent interpretation of the contractor, you know, the kinds of issues that come up in arbitration. In the, you know, in big corporations with these kinds of mandatory or forced arbitration agreements, it's exactly the opposite. When it's kept secret, when it's, you know, you can have provisions where the arbitration has to take place in some far off location, which has all kinds of problems. It's obviously a resource problem for workers to have to go to some, you know, strange state that has nothing to do with where they work. It's so, again, it's antithetical to that idea of building the relationship between the parties within the workplace. Everything about it sort of works in the opposite direction. Yeah, and also just sort of the point that Kaley made about some of the arbitrators aren't lawyers and not to be lawyer centric, but it's sort of, you want the precedent to be applied sometimes. And so, and you're also building it as you go. And if you're about to bring a civil rights lawsuit in one place, you look and see where someone brought this before, and you wanna talk to them and sort of have this as part of a movement. And none of that is possible if it's sort of in a conference room with someone who's not applying the law. And it's gonna be a secret outcome. It's sort of detrimental on all those fronts. Absolutely. Any other questions or comments? Okay, great. Well, thank you all so much. This was a wonderful discussion. Thanks for all of your efforts to make it so great. And thank you all for attending. Thanks.