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Klibanow Active in Media Colloquy on Employment Arbitration Class Waiver Controversy

Recently Ms. Klibanow was interviewed by legal reporter John Roemer and quoted in his November 24, 2017 Daily Journal article anticipating the U.S. Supreme Court’s upcoming ruling in the pending employment arbitration trilogy of cases, lead case being Epic Systems Corp. v. Lewis, which address the issue of legality- or illegality under the National Labor Relations Act (NLRA) – of mandatory predispute employment arbitration agreements which prohibit collective dispute resolution efforts (“Close vote expected as high court considers arbitration”). In addition to Ms. Klibanow, whose practice focuses on labor and employment arbitration and mediation, reporter Roemer also interviewed exclusively management-side attorneys Rex Heinke and Steven B. Katz.
As quoted by Roemer, Heinke politically characterized the three female justices (Ginsburg, Sotomayor and Kagan) as “liberals.” For whatever purpose the political characterization was made, Heinke’s remark that the three female justices “just seem to think the NLRA made the kind of agreements here illegal as barring concerted action” is apt (and also true and correct.)
Similarly, Katz unwarrantedly cast aspersions on the three female justices in “tarring them with a brush” of suffering temptation to [improperly] “put their policy preferences ahead of what they believe to be the law and Congress’ policy preferences, which is that contracts to arbitrate are to be enforced as written.” As reported, Katz maintained that the NLRB’s D.R. Horton decision was based upon a misapprehension of “how the law governs ‘concerted activity’ by workers,” which, Katz has reportedly opined, could have been averted had the NLRB reread their Dr. Seuss (i.e., Horton the Elephant) before deciding the case.
Rather than urging political discounting, vilifying appropriate judicial consultation of historical context and public policies underlying legislation, and attempting clever ridicule, those representatives of “establishment” interests who seek to disregard and rewrite history and to ignore responsibilities to the American community, would do well to dispassionately study the actual interrelation of the Federal Arbitration Act (FAA) and the NLRA. The FAA was enacted in 1925 and then, and for many decades thereafter, its application was limited to commercial disputes. The NLRA was enacted in 1935 to “shield…a wide range of [workers] concerted activity from both employer and judicial hostility.” See, “Horton Hatches the Egg: Concerted Action Includes Concerted Dispute Resolution,” Charles A. Sullivan and Timothy P. Glynn, 64 Alabama Law Review 1013 (2013) (the authors recognize the U.S. Supreme Court’s recent “redefinition of arbitration” but maintain that, from a purely legal perspective, “the irresistible force of that statute [FAA] must meet the immovable object of federal labor law.”) In other words, “contract terms designed to deter employees from pursuing their interests by collective action are precisely the kind of yellow dog-like provisions Congress sought to combat in enacting the NLA and the NLRA.” Ibid., 1073.
Sullivan and Glynn conclude their article in Seuss-like manner, “Horton meant what it said and said what it meant. Courts must follow, one hundred percent.” Ibid. As Klibanow has recently written and been quoted in the Daily Journal, the political advent of Gorsuch to the Court augurs dangerous and socially damaging juridical dereliction in enforcement of worker rights.