The U.S. Supreme Court heard oral arguments Monday on a set of cases involving individual employee arbitration.
Verona, Wis.-based health IT provider Epic consolidated with Chicago-based Ernst & Young and El Dorado, Ark.-based Murphy Oil USA in arguing their companies' individual arbitration contracts do not violate the National Labor Relations Act of 1935 and are legal under the Federal Arbitration Act.
Here are six highlights from the oral arguments.
1. Paul Clement, who argued on behalf of Epic, pushed the Supreme Court to lean on precedent — as earlier cases provide a "well-trod path" to resolve, he said. Under the FAA, arbitration agreements should be enforced unless Congress demands otherwise. In this case, it does not.
2. The four liberal-leaning justices — Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer — grilled Mr. Clement on how Epic's position could be argued under the NLRA. He said the NLRA only protects collective action in the workplace and provides a forum for employees to raise their grievances with employers.
3. Jeffrey Wall, arguing on behalf of the U.S., originally filed a brief with the National Labor Relations Board but then sided with the employers at the turn of the presidential administration. According to Mr. Wall, the case is at the "heartland of the" FAA but at the "periphery of the" NLRA. Mr. Wall added that the court's prior cases would not lead to answers and that "historical premise is just wrong."
4. According to Daniel Ortiz, who also argued on behalf of the U.S., an employer cannot "coerce" employees into a forum that would ban collective action.
5. Justices Clarence Thomas and Neil Gorsuch, PhD, remained silent during arguments.
6. Mr. Clement is not likely to get votes from the four liberal-leaning justices, according to Amy Howe in a SCOTUSblog post. However, Ms. Howe added that Mr. Clement likely won over the three conservative-leaning justices — Chief John Roberts, Samuel Alito and Anthony Kennedy.
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