The biggest workplace challenge in the coming U.S. Supreme Court term will require a delicate dance to divide up argument time in three consolidated cases with six lawyers, including two stars of the high court bar, and a U.S. Justice Department that has changed positions.

The justices will hear arguments Oct. 2, the first case of the new term, on whether workplace arbitration agreements that ban class actions violate the National Labor Relations Act because they restrict employees' right to engage in “concerted activities.”

Major companies and the Trump administration, contrary to the Obama administration's stance, contend the agreements are fully enforceable under the Federal Arbitration Act. The three cases, with huge stakes for employees and employers, will be among the most closely watched during the term.

While the Supreme Court has upheld class action bans in many consumer arbitration agreements, these cases reach into the employer-employee relationship. The National Labor Relations Act protects the rights of employees and employers to encourage collective bargaining and to curtail certain harmful private-sector labor and management practices. The act applies to most private-sector employers, but not to federal, state or local governments. 

The consolidated cases before the justices are: National Labor Relations Board v. Murphy Oil USA; Epic Systems v. Lewis; and Ernst & Young v. Morris.

Two motions for divided argument time have been filed in the Supreme Court—one by the National Labor Relations Board general counsel, Richard Griffin Jr., and the other by acting Solicitor General Jeffrey Wall.

Griffin, whose office is independent of the board, is asking the court for 20 minutes of argument time with the remaining 10 minutes for Daniel Ortiz of the University of Virginia School of Law's Supreme Court Litigation Clinic. Ortiz represents employee Jacob Lewis in Epic Systems.

Griffin told the justices that lawyers for Lewis and Sheila Hobson, who was the original charging party in the Murphy Oil case before the labor board, had agreed that he and Ortiz should argue. But Max Folkenflik of New York's Folkenflik & McGerity, who represents Ernst & Young employees Stephen Morris and Kelly McDaniel, agreed only to the division of time and Griffin's participation in the argument on behalf of the labor board. Folkenflik did not respond to an inquiry on Tuesday.

When the NLRB case was originally filed in September 2016, the government supported the board's position that class and collective bans violated federal labor law. The change in the White House, however, resulted in an about-face. Wall, the acting solicitor general as Noel Francisco awaits a confirmation vote, told the justices in June that his office had reconsidered the issue with the arrival of the new administration.

“We do not believe that the board in its prior unfair-labor-practice proceedings, or the government's certiorari petition in Murphy Oil, gave adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the FAA,” Wall wrote.