The U.S. Supreme Court. Credit: Mike Scarcella / NLJ

The outcome of the major U.S. Supreme Court case over whether companies can ban class actions in employment agreements holds new importance as women join together to speak out against sexual misconduct in the workplace, former National Labor Relations Board general counsel Richard Griffin said Wednesday.

Griffin, who argued the case before the high court in October, said the #MeToo movement that sprung from accusations against high-profile men in power illustrates the importance of “strength in numbers.”

The trio of consolidated cases at the high court confront whether workplace arbitration agreements that ban class actions violate the National Labor Relations Act because they restrict employees' rights to engage in concerted activities. Employers and workers' rights advocates are watching this case closely. Dozens of companies have cases on hold pending the outcome of the dispute at the Supreme Court.

“It is a very important case,” Griffin said Wednesday on a panel hosted by Bloomberg Law. “It is particularly important in all the discussion we are seeing now in the #MeToo context with sexual harassment, where that is demonstrated. Once people realize they have been subjected to the same conduct, others are allowed to come forward.”

The Supreme Court case was argued just before The New York Times and The New Yorker investigations into abuses by Hollywood producer Harvey Weinstein led to a wave of accusations against powerful men. In the last few months, the movement has caused companies to reconsider internal policies and prompted legislative action.

Richard Griffin

“The importance of being able for employees to join together and proceed jointly or collectively is crucial,” said Griffin, now of counsel to Bredhoff & Kaiser in Washington.

Griffin and fellow experts on labor and employment, former NLRB member Sharon Block, Epstein, Becker & Green member Paul DeCamp and Seyfarth Shaw partner Alexander Passantino, spoke on Wednesday's panel.

Griffin said the key question isn't whether class action waivers limit workers ability to come together, but rather whether the Federal Arbitration Agreement, which says agreements should be enforced as written, holds more power.

Passantino said that the pending Supreme Court case is extremely important to employers, particularly as an effort for “certainty into the process.”

Block, executive director of Harvard Law School's Labor and Worklife Program, said forcing workers to bring claims as individuals could have the effect of taking away the rights outlined in Section 7 of the National Labor Relations Act, which protects concerted speech.

“It can eliminate protections for workers who need that protection the most,” Block said. “I think this is a tremendously important case. The consequences of it, if it comes out the wrong way, could be significant.”

DeCamp said he thinks Congress should settle the question about whether Section 7 can prohibit class actions. The current makeup of the Republican-led National Labor Relations Board, he said, would not likely have come to the same conclusion as the Obama-era board did.

Griffin, representing the NLRB, argued before the Supreme Court in the consolidated cases. The U.S. Justice Department had earlier supported the board's position under the Obama administration but, under U.S. Attorney General Jeff Sessions, switched positions to back the companies. The Justice Department at the high court argued that class action bans in employment agreements are lawful.

“What happens here if you require people to sue individually is that they don't do it at all,” Griffin said Wednesday. “They won't seek to do it if they can't do it together.”

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