Only three years ago, the Supreme Court reversed the holdings of a large number of lower courts and held that class action waivers in arbitration agreements were enforceable. Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). We blogged about that decision here. With the Supreme Court’s ruling, many employers either adopted such agreements or began to enforce their preexisting agreements more effectively. Particularly in the realm of Fair Labor Standards Act litigation, these agreements became an important part of the defense, providing a counterbalance to courts’ frequent application of the reduced standards for “conditional certification” and the resulting undue economic pressure placed on defendants to settle.
The plaintiffs’ bar reacted immediately, and numerous efforts were made at the state and federal levels to limit Epic Systems’ reach. We have blogged about many of those efforts here: August 11, 2021, February 11, 2020, October 11, 2019, March 28, 2019, and November 16, 2018. Employment arbitration again became an issue following the 2020 elections. With the change in control of Congress, various bills were introduced that would effectively make Epic Systems a nullity.