On May 21, 2018, the U.S. Supreme Court issued its long-awaited opinion in Epic Systems Corporation v. Lewis, in which it held that arbitration agreements containing class action waivers were enforceable notwithstanding the National Labor Relations Act’s protection for employee “concerted activity.” The five-Justice majority opinion sparked a fiery dissent by Justice Ruth Bader Ginsburg, who focused on the opinion’s potential impact on wage and hour litigation, among other employee activities. In response, this week, Washington State’s Democratic Governor Jay Inslee issued a sweeping Executive Order seeking to discourage employers from implementing (or continuing to rely on) arbitration agreements with class action waivers. Although Governor Inslee’s action is the exception so far, it may signal a broader backlash to arbitration agreements with class action waivers in the employment context.
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