The Supreme Court issued on Monday a monumental decision allowing employers to require their workers to sign arbitration agreements and to abandon their right to legal action as a group. The decision in Epic Systems against Lewis will make it harder for workers to join as victims of wage theft and discrimination, and their impact will be felt in the workplace over the next few years.
But for a few thousand current and former Chipotle workers can feel their effects immediately. Her case is a perfect example of how the Supreme Court ruling will benefit powerful companies at the expense of their employees, many of whom work for low wages in industries such as fast food.
But Chipotle argues that 2,814 workers in this group have no valid claim because they signed class and collective action waivers when they accepted their work. At the end of last year, the company provided the court with a 62-page list of workers who allegedly signed their rights and asked the judge to exclude them from the trial.
The judge has not yet decided on this request. But thanks to Justice Neil Gorsuch and the rest of the conservative majority of the Supreme Court, Chipotle could soon get his request. The judge of the case issued a ruling on Wednesday requesting the parties to file new pleadings by 6 June in the light of the Epic Systems ruling.
Her case is a perfect example of how the Supreme Court ruling will bring benefits to powerful companies at the expense of their employees.
In the decision authored by Gorsuch, the court ruled that a worker's right to interfere with other workers in  Mutual Assistance or Protection under the National Labor Relations Act does not invalidate a worker's class action disclaimer , Judge Ruth Bader Ginsburg called the decision "disgustingly wrong" in her dissent arguing that the right to associate with other workers is not worth much if a worker has to give up this right to work
What makes the decision most likely for the Chipotle lawsuit is that around 7,000 workers will be able to collectively pursue their claims, while nearly 3,000 other workers will not. If the judge approves Chipotle's request for the latter to be expelled, these workers would have to go to an arbitrator individually and privately. That is, if they happen to find a lawyer willing to handle a case with a claim that may be less than the cost of litigation.
"Unfortunately this is almost a perfect social experiment," said Moshe Marvit, labor lawyer and Century Foundation think tank employee.
All plaintiffs did similar work for the same company and share the same grudge. The only difference is whether they had the misfortune to work for Chipotle after the company introduced a mandatory arbitration agreement that contained a class action waiver.
Chipotle declined to answer questions from HuffPost about why it introduced compulsory arbitration for its employees and how it ensures that employees actually understand what they agree with. It also refused to answer questions about the case's underlying accusation – that it did not pay thousands of low paid employees for the work they did.
However, the allegations in the lawsuit help to gain some light. According to the jurisdiction, in August 2014, Chipotle began asking future employees to file class actions. If they did not sign, they did not get their work. Since then, tens of thousands of workers have agreed to make claims for arbitration as individuals.
The legal contracts were included in the onboarding materials that claimants go online when they were approved for a Chipotle job, according to the lawsuit. Its meaning would not necessarily stand out with an applicant: Other documents in the bundle include the employee handbook and manual for hand washing as well as secrecy and non-disclosure agreements.
The Supreme Court ruling is based on the idea that the two parties are joining voluntarily to form an agreement to arbitrate any dispute in the workplace. But in a transcript, a Chipotle lawyer explained how voluntary these two-party contracts really are in practice:
"[I] If you choose not to consent to the arbitration agreement, for example, once you have been notified and an opportunity Watching it, reading it, asking any questions, downloading it, storing it, whatever you want to do – if you do not, you do not have to be an employee, "said David Gottlieb, who is on the LinkedIn list Compliance Director of the Company
HuffPost Reader: Do you belong to a labor dispute that could be affected by the Supreme Court decision? Email us about it.
Most workers do not read the pile of documents they need to go through when they accept a job. And even if that were the case, any worker – let alone one without a high level of education – would not fully understand the implications of what he agrees with. They may also hesitate to ask questions and pose as troublemakers or hire their own staff as soon as they have been offered a job.
Gottlieb testified that it is the duty of workers to understand what they sign.
"The duty of the employee is to do everything he needs to understand what he is agreeing on," said Gottlieb.
An attorney's lawyer asked Gottlieb what would happen if, for example, a worker came in with the arbitration agreement, but could not read it.
"[I] If you're ready in the onboarding steps and only now discover that you can not understand what's going on, boy … I wonder if we should hire you because of you should ask for help earlier, "Gottlieb replied.
Gottlieb testified that the workers agreed to the arbitration agreement by checking an electronic box instead of making an actual signature. He admitted that a worker could check the box without opening the document.
"Yes, you could do that, but at your own risk," said Kent Williams, a plaintiff's attorney, to HuffPost that his clients did not understand what they agreed to when they accepted their job at Chipotle.
"Hardly anybody remembers signing it, and by signing it, I mean, they click 'Agree,' Williams said," They do not read this stuff, and they do not understand that stuff . "
As US unions have lost much of their influence, class actions have become one of the main ways in which workers can band together with a grievance and take over the boss. When workers are involved in arbitration as individuals, That's what Justice Stephen Breyer stumbled upon when he said during Epic Systems' oral argument that the case encountered "the whole heart of the New Deal."
The employee's commitment is to do everything necessary to understand what it is that they agree with.
David Gottlieb, Chipotle's Director of Compliance
When Chipotle-Arbe If they are taken out of their lawsuit, they could still pursue their claims in arbitration. But there is reason to believe that many of them would not.
Because these workers earn low wages, their individual claims are inherently low. According to Williams, the claims range from 50 to several thousand, depending on how long you've worked at Chipotle. A lawyer could accept this case if there are enough plaintiffs in a class action or a class action lawsuit, but an individual award may not be worth the time of the lawyer. As Ginsburg wrote in her contradiction: "The expenses associated with raising individual claims will often far outweigh the possible recoveries."
A worker could still pursue the case without a lawyer. But they probably have no strong influence on the Fair Labor Standards Act and the provisions of the minimum wage and overtime laws, and they would oppose a lawyer for Chipotle, a company with an annual turnover of about $ 4 billion. And while they feel comfortable joining in a major legal battle with other colleagues, many would no doubt shy away from acting alone for fear of being perceived as an agitator.
In this particular case, the lawyers represent the workers in the large collective action could consider representing workers who are individually forced into arbitration, if only because they have already established the case and a deep understanding of the claims to have. But Chipotle fights in court to prevent this.
The company argued that plaintiffs' attorneys had no right to inform workers about the wage theft lawsuit if those workers had signed an arbitration agreement. Chipotle was of the opinion that "a clear request from the plaintiff's lawyer … to violate a contract with Chipotle [the workers’]". The company went one step further and demanded that the lawyers of the plaintiffs be excluded from representing these workers in arbitration theory, would force the workers to find a new lawyer who is unfamiliar with their case.
"The plaintiff should not be allowed to use this process for his personal financial benefit or additional leverage in this case," the company argued.
The judge has not yet made a decision about Chipotle's request.
"I think it's basically vindictive," Williams said. "They are upset that these people are taking notice of it, they are upset that they have decided, they are upset that they have not yet been kicked out, and they are accusing the plaintiff's lawyer."
Williams said if the judge does not dissuade his team In the service of their clients, they plan to represent anyone who has been released from arbitration – even if it means taking over 2800 individual cases. This could be a huge expense for Chipotle.
"I have a commitment to these people," Williams said. "If we are disqualified to represent them, then they really will not be eligible, and the likelihood that they will find a lawyer who individually accepts these claims is low."
As a result of Epic Systems' decision, it is likely be that more employers will use job renunciations in hiring and less workers will end up in large pay-per-hour processes like the one Chipotle faces. Williams estimates that "every employer requires compulsory arbitration."
If that happens, it would have repercussions beyond the workers' ability to recover wages that they believe are owed to them. Given the private nature of arbitration, this would help keep workplace issues out of the public's eye where other lawyers or journalists might find them.
It could also be a great incentive for employers to follow the law. Businesses often change their business methods after costly and embarrassing lawsuits. Like other large employers in low-wage industries, Chipotle counts pay and work lawsuits as one of his top legal risks, for now .
"One of the goals of one process is obviously to get money, but another is to get a company to change its behavior," Marvit explained. "When workers go to arbitration, there's no incentive for Chipotle to change, they're not under threat enough, and they know they'll never do that."