The Department of Justice announced on June 16, 2017 that it will switch sides in a Supreme Court case, dropping its previous support for workers to throw its weight behind management.
The case, NLRB v. Murphy Oil, had held that an employment contract that requires the employee to waive his or her right to bring a class-action lawsuit against the employer violates the National Labor Relations Act.
Last year, the Department of Justice had weighed in on the side of the National Labor Relations Board, which had ruled that such arbitration agreements violated federal labor law. Now, the Department of Justice will weigh in on the side of Murphy Oil, which argued that they do not. In its new amicus brief , the DOJ argues that “nothing in the NLRA’s legislative history indicates that Congress intended to bar enforcement of arbitration agreements like those at issue here.” The DOJ acknowledged that it previously supported the NLRB’s position, but that “after the change in administration, the office reconsidered the issue and has reached the opposite conclusion.”
It is rare for the DOJ to switch positions in a Supreme Court case.
The case comes at a time when mandatory arbitration agreements are attracting media attention because of last year’s sexual harassment allegations against Fox News. Gretchen Carlson, a former Fox News anchor, sued Fox Chairman and CEO Roger Ailes for sexual harassment, instead of Fox News, to avoid a mandatory arbitration clause in her contract. In that instance, though, the mandatory arbitration clause concerned individual claims against the company, not class actions.