Epic Systems Corp. v. Lewis , 138 S. Ct. 1612 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
EPIC SYSTEMS CORP. v. LEWIS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 16–285. Argued October 2, 2017—Decided May 21, 2018*
In each of these cases, an employer and employee entered into a con-
tract providing for individualized arbitration proceedings to resolve
employment disputes between the parties. Each employee nonethe-
less sought to litigate Fair Labor Standards Act and related state law
claims through class or collective actions in federal court. Although
the Federal Arbitration Act generally requires courts to enforce arbi-
tration agreements as written, the employees argued that its “saving
clause” removes this obligation if an arbitration agreement violates
some other federal law and that, by requiring individualized proceed-
ings, the agreements here violated the National Labor Relations Act.
The employers countered that the Arbitration Act protects agree-
ments requiring arbitration from judicial interference and that nei-
ther the saving clause nor the NLRA demands a different conclusion.
Until recently, courts as well as the National Labor Relations Board’s
general counsel agreed that such arbitration agreements are enforce-
able. In 2012, however, the Board ruled that the NLRA effectively
nullifies the Arbitration Act in cases like these, and since then other
courts have either agreed with or deferred to the Board’s position.
Held: Congress has instructed in the Arbitration Act that arbitration
agreements providing for individualized proceedings must be en-
forced, and neither the Arbitration Act’s saving clause nor the NLRA
suggests otherwise. Pp. 5–25.
——————
* Together with No. 16–300, Ernst & Young LLP et al. v. Morris et al.,
on certiorari to the United States Court of Appeals for the Ninth Cir-
cuit, and No. 16–307, National Labor Relations Board v. Murphy Oil
USA, Inc., et al., on certiorari to the United States Court of Appeals for
the Fifth Circuit.
2 EPIC SYSTEMS CORP. v. LEWIS
Syllabus
(a) The Arbitration Act requires courts to enforce agreements to
arbitrate, including the terms of arbitration the parties select. See 9
U.S. C. §§2, 3, 4. These emphatic directions would seem to resolve
any argument here. The Act’s saving clause—which allows courts to
refuse to enforce arbitration agreements “upon such grounds as exist
at law or in equity for the revocation of any contract,” §2—recognizes
only “ ‘generally applicable contract defenses, such as fraud, duress,
or unconscionability,’ ” AT&T Mobility LLC v. Concepcion, 563 U.S.
333, 339, not defenses targeting arbitration either by name or by
more subtle methods, such as by “interfer[ing] with fundamental at-
tributes of arbitration,” id., at 344. By challenging the agreements
precisely because they require individualized arbitration instead of
class or collective proceedings, the employees seek to interfere with
one of these fundamental attributes. Pp. 5–9.
(b) The employees also mistakenly claim that, even if the Arbitra-
tion Act normally requires enforcement of arbitration agreements
like theirs, the NLRA overrides that guidance and renders their
agreements unlawful yet. When confronted with two Acts allegedly
touching on the same topic, this Court must strive “to give effect to
both.” Morton v. Mancari, 417 U.S. 535, 551. To prevail, the em-
ployees must show a “ ‘clear and manifest’ ” congressional intention
to displace one Act with another. Ibid. There is a “stron[g] pre-
sum[ption]” that disfavors repeals by implication and that “Congress
will specifically address” preexisting law before suspending the law’s
normal operations in a later statute. United States v. Fausto, 484
U.S. 439, 452, 453.
The employees ask the Court to infer that class and collective ac-
tions are “concerted activities” protected by §7 of the NLRA, which
guarantees employees “the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively . . . , and to engage
in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection,” 29 U.S. C. §157. But §7 focuses
on the right to organize unions and bargain collectively. It does not
mention class or collective action procedures or even hint at a clear
and manifest wish to displace the Arbitration Act. It is unlikely that
Congress wished to confer a right to class or collective actions in §7,
since those procedures were hardly known when the NLRA was
adopted in 1935. Because the catchall term “other concerted activi-
ties for the purpose of . . . other mutual aid or protection” appears at
the end of a detailed list of activities, it should be understood to pro-
tect the same kind of things, i.e., things employees do for themselves
in the course of exercising their right to free association in the work-
place.
The NLRA’s structure points to the same conclusion. After speak-
Cite as: 584 U. S. ____ (2018) 3
Syllabus
ing of various “concerted activities” in §7, the statute establishes a
detailed regulatory regime applicable to each item on the list, but
gives no hint about what rules should govern the adjudication of class
or collective actions in court or arbitration. Nor is it at all obvious
what rules should govern on such essential issues as opt-out and opt-
in procedures, notice to class members, and class certification stand-
ards. Telling too is the fact that Congress has shown that it knows
exactly how to specify certain dispute resolution procedures, cf., e.g.,
29 U.S. C. §§216(b), 626, or to override the Arbitration Act, see, e.g.,
15 U.S. C. §1226(a)(2), but Congress has done nothing like that in
the NLRA.
The employees suggest that the NLRA does not discuss class and
collective action procedures because it means to confer a right to use
existing procedures provided by statute or rule, but the NLRA does
not say even that much. And if employees do take existing rules as
they find them, they must take them subject to those rules’ inherent
limitations, including the principle that parties may depart from
them in favor of individualized arbitration.
In another contextual clue, the employees’ underlying causes of ac-
tion arise not under the NLRA but under the Fair Labor Standards
Act, which permits the sort of collective action the employees wish to
pursue here. Yet they do not suggest that the FLSA displaces the
Arbitration Act, presumably because the Court has held that an iden-
tical collective action scheme does not prohibit individualized arbitra-
tion proceedings, see Gilmer v. Interstate/Johnson Lane Corp., 500
U.S. 20, 32. The employees’ theory also runs afoul of the rule that
Congress “does not alter the fundamental details of a regulatory
scheme in vague terms or ancillary provisions,” Whitman v. American
Trucking Assns., Inc., 531 U.S. 457, 468, as it would allow a catchall
term in the NLRA to dictate the particulars of dispute resolution pro-
cedures in Article III courts or arbitration proceedings—matters that
are usually left to, e.g., the Federal Rules of Civil Procedure, the Ar-
bitration Act, and the FLSA. Nor does the employees’ invocation of
the Norris-LaGuardia Act, a predecessor of the NLRA, help their ar-
gument. That statute declares unenforceable contracts in conflict
with its policy of protecting workers’ “concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,” 29
U.S. C. §102, and just as under the NLRA, that policy does not con-
flict with Congress’s directions favoring arbitration.
Precedent confirms the Court’s reading. The Court has rejected
many efforts to manufacture conflicts between the Arbitration Act
and other federal statutes, see, e.g. American Express Co. v. Italian
Colors Restaurant, 570 U.S. 228; and its §7 cases have generally in-
volved efforts related to organizing and collective bargaining in the
4 EPIC SYSTEMS CORP. v. LEWIS
Syllabus
workplace, not the treatment of class or collective action procedures
in court or arbitration, see, e.g., NLRB v. Washington Aluminum Co.,
370 U.S. 9.
Finally, the employees cannot expect deference under Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, because Chevron’s essential premises are missing. The Board
sought not to interpret just the NLRA, “which it administers,” id., at
842, but to interpret that statute in a way that limits the work of the
Arbitration Act, which the agency does not administer. The Board
and the Solicitor General also dispute the NLRA’s meaning, articu-
lating no single position on which the Executive Branch might be
held “accountable to the people.” Id., at 865. And after “employing
traditional tools of statutory construction,” id., at 843, n. 9, including
the canon against reading conflicts into statutes, there is no unre-
solved ambiguity for the Board to address. Pp. 9–21.
No. 16–285, 823 F.3d 1147, and No. 16–300, 834 F.3d 975, reversed
and remanded; No. 16–307, 808 F.3d 1013, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a
concurring opinion. GINSBURG, J., filed a dissenting opinion, in which
BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
Cite as: 584 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 16–285, 16–300, 16–307
_________________
EPIC SYSTEMS CORPORATION, PETITIONER
16–285 v.
JACOB LEWIS;
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
ERNST & YOUNG LLP, ET AL., PETITIONERS
16–300 v.
STEPHEN MORRIS, ET AL.; AND
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD, PETITIONER
16–307 v.
MURPHY OIL USA, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 21, 2018]
JUSTICE GORSUCH delivered the opinion of the Court.
Should employees and employers be allowed to agree
that any disputes between them will be resolved through
one-on-one arbitration? Or should employees always be
permitted to bring their claims in class or collective ac-
tions, no matter what they agreed with their employers?
2 EPIC SYSTEMS CORP. v. LEWIS
Opinion of the Court
As a matter of policy these questions are surely debat-
able. But as a matter of law the answer is clear. In the
Federal Arbitration Act, Congress has instructed federal
courts to enforce arbitration agreements according to their
terms—including terms providing for individualized pro-
ceedings. Nor can we agree with the employees’ sugges-
tion that the National Labor Relations Act (NLRA) offers a
conflicting command. It is this Court’s duty to interpret
Congress’s statutes as a harmonious whole rather than at
war with one another. And abiding that duty here leads to
an unmistakable conclusion. The NLRA secures to em-
ployees rights to organize unions and bargain collectively,
but it says nothing about how judges and arbitrators must
try legal disputes that leave the workplace and enter the
courtroom or arbitral forum. This Court has never read a
right to class actions into the NLRA—and for three quar-
ters of a century neither did the National Labor Relations
Board. Far from conflicting, the Arbitration Act and the
NLRA have long enjoyed separate spheres of influence and
neither permits this Court to declare the parties’ agree-
ments unlawful.
I
The three cases before us differ in detail but not in
substance. Take Ernst & Young LLP v. Morris. There
Ernst & Young and one of its junior accountants, Stephen
Morris, entered into an agreement providing that they
would arbitrate any disputes that might arise between
them. The agreement stated that the employee could
choose the arbitration provider and that the arbitrator
could “grant any relief that could be granted by . . . a
court” in the relevant jurisdiction. App. in No. 16–300,
p. 43. The agreement also specified individualized arbi-
tration, with claims “pertaining to different [e]mployees
[to] be heard in separate proceedings.” Id., at 44.
After his employment ended, and despite having agreed
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Opinion of the Court
to arbitrate claims against the firm, Mr. Morris sued
Ernst & Young in federal court. He alleged that the firm
had misclassified its junior accountants as professional
employees and violated the federal Fair Labor Standards
Act (FLSA) and California law by paying them salaries
without overtime pay. Although the arbitration agree-
ment provided for individualized proceedings, Mr. Morris
sought to litigate the federal claim on behalf of a nation-
wide class under the FLSA’s collective action provision, 29
U.S. C. §216(b). He sought to pursue the state law claim
as a class action under Federal Rule of Civil Procedure 23.
Ernst & Young replied with a motion to compel arbitra-
tion. The district court granted the request, but the Ninth
Circuit reversed this judgment. 834 F.3d 975 (2016). The
Ninth Circuit recognized that the Arbitration Act gener-
ally requires courts to enforce arbitration agreements as
written. But the court reasoned that the statute’s “saving
clause,” see 9 U.S. C. §2, removes this obligation if an
arbitration agreement violates some other federal law.
And the court concluded that an agreement requiring
individualized arbitration proceedings violates the NLRA
by barring employees from engaging in the “concerted
activit[y],” 29 U.S. C. §157, of pursuing claims as a class
or collective action.
Judge Ikuta dissented. In her view, the Arbitration Act
protected the arbitration agreement from judicial interfer-
ence and nothing in the Act’s saving clause suggested
otherwise. Neither, she concluded, did the NLRA demand
a different result. Rather, that statute focuses on protect-
ing unionization and collective bargaining in the work-
place, not on guaranteeing class or collective action proce-
dures in disputes before judges or arbitrators.
Although the Arbitration Act and the NLRA have long
coexisted—they date from 1925 and 1935, respectively—
the suggestion they might conflict is something quite new.
Until a couple of years ago, courts more or less agreed that
4 EPIC SYSTEMS CORP. v. LEWIS
Opinion of the Court
arbitration agreements like those before us must be en-
forced according to their terms. See, e.g., Owen v. Bristol
Care, Inc., 702 F.3d 1050 (CA8 2013); Sutherland v. Ernst
& Young LLP, 726 F.3d 290 (CA2 2013); D. R. Horton,
Inc. v. NLRB, 737 F.3d 344 (CA5 2013); Iskanian v. CLS
Transp. Los Angeles, LLC, 59 Cal. 4th 348, 327 P.3d 129
(2014); Tallman v. Eighth Jud. Dist. Court, 131 Nev. 71,
359 P.3d 113 (2015); 808 F.3d 1013 (CA5 2015) (case
below in No. 16–307).
The National Labor Relations Board’s general counsel
expressed much the same view in 2010. Remarking that
employees and employers “can benefit from the relative
simplicity and informality of resolving claims before arbi-
trators,” the general counsel opined that the validity of
such agreements “does not involve consideration of the
policies of the National Labor Relations Act.” Memoran-
dum GC 10–06, pp. 2, 5 (June 16, 2010).
But recently things have shifted. In 2012, the Board—
for the first time in the 77 years since the NLRA’s adop-
tion—asserted that the NLRA effectively nullifies the
Arbitration Act in cases like ours. D. R. Horton, Inc., 357
N. L. R. B. 2277. Initially, this agency decision received a
cool reception in court. See D. R. Horton, 737 F.3d, at
355–362. In the last two years, though, some circuits have
either agreed with the Board’s conclusion or thought
themselves obliged to defer to it under Chevron U. S. A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984). See 823 F.3d 1147 (CA7 2016) (case below in
No. 16–285); 834 F.3d 975 (case below in No. 16–300);
NLRB v. Alternative Entertainment, Inc., 858 F.3d 393
(CA6 2017). More recently still, the disagreement has
grown as the Executive has disavowed the Board’s (most
recent) position, and the Solicitor General and the Board
have offered us battling briefs about the law’s meaning.
We granted certiorari to clear the confusion. 580 U. S. ___
(2017).
Cite as: 584 U. S. ____ (2018) 5
Opinion of the Court
II
We begin with the Arbitration Act and the question of
its saving clause.
Congress adopted the Arbitration Act in 1925 in re-
sponse to a perception that courts were unduly hostile to
arbitration. No doubt there was much to that perception.
Before 1925, English and American common law courts
routinely refused to enforce agreements to arbitrate dis-
putes. Scherk v. Alberto-Culver Co., 417 U.S. 506, 510,
n. 4 (1974). But in Congress’s judgment arbitration had
more to offer than courts recognized—not least the prom-
ise of quicker, more informal, and often cheaper resolu-
tions for everyone involved. Id., at 511. So Congress
directed courts to abandon their hostility and instead treat
arbitration agreements as “valid, irrevocable, and enforce-
able.” 9 U.S. C. §2. The Act, this Court has said, estab-
lishes “a liberal federal policy favoring arbitration agree-
ments.” Moses H. Cone Memorial Hospital v. Mercury
Constr. Corp., 460 U.S. 1, 24 (1983) (citing Prima Paint
Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967));
see id., at 404 (discussing “the plain meaning of the stat-
ute” and “the unmistakably clear congressional purpose
that the arbitration procedure, when selected by the par-
ties to a contract, be speedy and not subject to delay and
obstruction in the courts”).
Not only did Congress require courts to respect and
enforce agreements to arbitrate; it also specifically di-
rected them to respect and enforce the parties’ chosen
arbitration procedures. See §3 (providing for a stay of
litigation pending arbitration “in accordance with the
terms of the agreement”); §4 (providing for “an order
directing that . . . arbitration proceed in the manner pro-
vided for in such agreement”). Indeed, we have often
observed that the Arbitration Act requires courts “rigor-
ously” to “enforce arbitration agreements according to
their terms, including terms that specify with whom the
6 EPIC SYSTEMS CORP. v. LEWIS
Opinion of the Court
parties choose to arbitrate their disputes and the rules
under which that arbitration will be conducted.” Ameri-
can Express Co. v. Italian Colors Restaurant, 570 U.S.
228, 233 (2013) (some emphasis added; citations, internal
quotation marks, and brackets omitted).
On first blush, these emphatic directions would seem to
resolve any argument under the Arbitration Act. The
parties before us contracted for arbitration. They pro-
ceeded to specify the rules that would govern their arbi-
trations, indicating their intention to use individualized
rather than class or collective action procedures. And this
much the Arbitration Act seems to protect pretty absolutely.
See AT&T Mobility LLC v. Concepcion, 563 U.S. 333
(2011); Italian Colors, supra; DIRECTV, Inc. v. Imburgia,
577 U. S. ___ (2015). You might wonder if the balance
Congress struck in 1925 between arbitration and litigation
should be revisited in light of more contemporary devel-
opments. You might even ask if the Act was good policy
when enacted. But all the same you might find it difficult
to see how to avoid the statute’s application.
Still, the employees suggest the Arbitration Act’s saving
clause creates an exception for cases like theirs. By its
terms, the saving clause allows courts to refuse to enforce
arbitration agreements “upon such grounds as exist at law
or in equity for the revocation of any contract.” §2. That
provision applies here, the employees tell us, because the
NLRA renders their particular class and collective action
waivers illegal. In their view, illegality under the NLRA is
a “ground” that “exists at law . . . for the revocation” of
their arbitration agreements, at least to the extent those
agreements prohibit class or collective action proceedings.
The problem with this line of argument is fundamental.
Put to the side the question whether the saving clause was
designed to save not only state law defenses but also
defenses allegedly arising from federal statutes. See 834
F.3d, at 991–992, 997 (Ikuta, J., dissenting). Put to the
Cite as: 584 U. S. ____ (2018) 7
Opinion of the Court
side the question of what it takes to qualify as a ground
for “revocation” of a contract. See Concepcion, supra, at
352–355 (THOMAS, J., concurring); post, at 1–2 (THOMAS,
J., concurring). Put to the side for the moment, too, even
the question whether the NLRA actually renders class and
collective action waivers illegal. Assuming (but not grant-
ing) the employees could satisfactorily answer all those
questions, the saving clause still can’t save their cause.
It can’t because the saving clause recognizes only de-
fenses that apply to “any” contract. In this way the clause
establishes a sort of “equal-treatment” rule for arbitration
contracts. Kindred Nursing Centers L. P. v. Clark, 581
U. S. ___, ___ (2017) (slip op., at 4). The clause “permits
agreements to arbitrate to be invalidated by ‘generally
applicable contract defenses, such as fraud, duress, or
unconscionability.’ ” Concepcion, 563 U.S., at 339. At the
same time, the clause offers no refuge for “defenses that
apply only to arbitration or that derive their meaning from
the fact that an agreement to arbitrate is at issue.” Ibid.
Under our precedent, this means the saving clause does
not save defenses that target arbitration either by name or
by more subtle methods, such as by “interfer[ing] with
fundamental attributes of arbitration.” Id., at 344; see
Kindred Nursing, supra, at ___ (slip op., at 5).
This is where the employees’ argument stumbles. They
don’t suggest that their arbitration agreements were
extracted, say, by an act of fraud or duress or in some
other unconscionable way that would render any contract
unenforceable. Instead, they object to their agreements
precisely because they require individualized arbitration
proceedings instead of class or collective ones. And by
attacking (only) the individualized nature of the arbitra-
tion proceedings, the employees’ argument seeks to inter-
fere with one of arbitration’s fundamental attributes.
We know this much because of Concepcion. There this
Court faced a state law defense that prohibited as uncon-
8 EPIC SYSTEMS CORP. v. LEWIS
Opinion of the Court
scionable class action waivers in consumer contracts. The
Court readily acknowledged that the defense formally
applied in both the litigation and the arbitration context.
563 U.S., at 338, 341. But, the Court held, the defense
failed to qualify for protection under the saving clause
because it interfered with a fundamental attribute of
arbitration all the same. It did so by effectively permitting
any party in arbitration to demand classwide proceedings
despite the traditionally individualized and informal
nature of arbitration. This “fundamental” change to the
traditional arbitration process, the Court said, would
“sacrific[e] the principal advantage of arbitration—its
informality—and mak[e] the process slower, more costly,
and more likely to generate procedural morass than final
judgment.” Id., at 347, 348. Not least, Concepcion noted,
arbitrators would have to decide whether the named class
representatives are sufficiently representative and typical
of the class; what kind of notice, opportunity to be heard,
and right to opt out absent class members should enjoy;
and how discovery should be altered in light of the class-
wide nature of the proceedings. Ibid. All of which would
take much time and effort, and introduce new risks and
costs for both sides. Ibid. In the Court’s judgment, the
virtues Congress originally saw in arbitration, its speed
and simplicity and inexpensiveness, would be shorn away
and arbitration would wind up looking like the litigation it
was meant to displace.
Of course, Concepcion has its limits. The Court recog-
nized that parties remain free to alter arbitration proce-
dures to suit their tastes, and in recent years some parties
have sometimes chosen to arbitrate on a classwide basis.
Id., at 351. But Concepcion’s essential insight remains:
courts may not allow a contract defense to reshape tradi-
tional individualized arbitration by mandating classwide
arbitration procedures without the parties’ consent. Id., at
344–351; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l
Cite as: 584 U. S. ____ (2018) 9
Opinion of the Court
Corp., 559 U.S. 662, 684–687 (2010). Just as judicial
antagonism toward arbitration before the Arbitration Act’s
enactment “manifested itself in a great variety of devices
and formulas declaring arbitration against public policy,”
Concepcion teaches that we must be alert to new devices
and formulas that would achieve much the same result
today. 563 U.S., at 342 (internal quotation marks omit-
ted). And a rule seeking to declare individualized arbitra-
tion proceedings off limits is, the Court held, just such a
device.
The employees’ efforts to distinguish Concepcion fall
short. They note that their putative NLRA defense would
render an agreement “illegal” as a matter of federal statu-
tory law rather than “unconscionable” as a matter of state
common law. But we don’t see how that distinction makes
any difference in light of Concepion’s rationale and rule.
Illegality, like unconscionability, may be a traditional,
generally applicable contract defense in many cases, in-
cluding arbitration cases. But an argument that a con-
tract is unenforceable just because it requires bilateral
arbitration is a different creature. A defense of that kind,
Concepcion tells us, is one that impermissibly disfavors
arbitration whether it sounds in illegality or unconscion-
ability. The law of precedent teaches that like cases should
generally be treated alike, and appropriate respect for that
principle means the Arbitration Act’s saving clause can no
more save the defense at issue in these cases than it did
the defense at issue in Concepcion. At the end of our
encounter with the Arbitration Act, then, it appears just
as it did at the beginning: a congressional command re-
quiring us to enforce, not override, the terms of the arbi-
tration agreements before us.
III
But that’s not the end of it. Even if the Arbitration Act
normally requires us to enforce arbitration agreements
10 EPIC SYSTEMS CORP. v. LEWIS
Opinion of the Court
like theirs, the employees reply that the NLRA overrides
that guidance in these cases and commands us to hold
their agreements unlawful yet.
This argument faces a stout uphill climb. When con-
fronted with two Acts of Congress allegedly touching on
the same topic, this Court is not at “liberty to pick and
choose among congressional enactments” and must in-
stead strive “ ‘to give effect to both.’ ” Morton v. Mancari,
417 U.S. 535, 551 (1974). A party seeking to suggest that
two statutes cannot be harmonized, and that one displaces
the other, bears the heavy burden of showing “ ‘a clearly
expressed congressional intention’ ” that such a result
should follow. Vimar Seguros y Reaseguros, S. A. v. M/V
Sky Reefer, 515 U.S. 528, 533 (1995). The intention must
be “ ‘clear and manifest.’ ” Morton, supra, at 551. And in
approaching a claimed conflict, we come armed with the
“stron[g] presum[ption]” that repeals by implication are
“disfavored” and that “Congress will specifically address”
preexisting law when it wishes to suspend its normal
operations in a later statute. United States v. Fausto, 484
U.S. 439, 452, 453 (1988).
These rules exist for good reasons. Respect for Congress
as drafter counsels against too easily finding irreconcilable
conflicts in its work. More than that, respect for the sepa-
ration of powers counsels restraint. Allowing judges to
pick and choose between statutes risks transforming them
from expounders of what the law is into policymakers
choosing what the law should be. Our rules aiming for
harmony over conflict in statutory interpretation grow
from an appreciation that it’s the job of Congress by legis-
lation, not this Court by supposition, both to write the
laws and to repeal them.
Seeking to demonstrate an irreconcilable statutory
conflict even in light of these demanding standards, the
employees point to Section 7 of the NLRA. That provision
guarantees workers
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Opinion of the Court
“the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.” 29
U.S. C. §157.
From this language, the employees ask us to infer a clear
and manifest congressional command to displace the
Arbitration Act and outlaw agreements like theirs.
But that much inference is more than this Court may
make. Section 7 focuses on the right to organize unions
and bargain collectively. It may permit unions to bargain
to prohibit arbitration. Cf. 14 Penn Plaza LLC v. Pyett,
556 U.S. 247, 256–260 (2009). But it does not express
approval or disapproval of arbitration. It does not men-
tion class or collective action procedures. It does not even
hint at a wish to displace the Arbitration Act—let alone
accomplish that much clearly and manifestly, as our prec-
edents demand.
Neither should any of this come as a surprise. The
notion that Section 7 confers a right to class or collective
actions seems pretty unlikely when you recall that proce-
dures like that were hardly known when the NLRA was
adopted in 1935. Federal Rule of Civil Procedure 23 didn’t
create the modern class action until 1966; class arbitration
didn’t emerge until later still; and even the Fair Labor
Standards Act’s collective action provision postdated
Section 7 by years. See Rule 23–Class Actions, 28 U.S. C.
App., p. 1258 (1964 ed., Supp. II); 52 Stat. 1069; Concep-
cion, 563 U.S., at 349; see also Califano v. Yamasaki, 442
U.S. 682, 700–701 (1979) (noting that the “usual rule”
then was litigation “conducted by and on behalf of individ-
ual named parties only”). And while some forms of group
litigation existed even in 1935, see 823 F.3d, at 1154,
Section 7’s failure to mention them only reinforces that
12 EPIC SYSTEMS CORP. v. LEWIS
Opinion of the Court
the statute doesn’t speak to such procedures.
A close look at the employees’ best evidence of a poten-
tial conflict turns out to reveal no conflict at all. The
employees direct our attention to the term “other con-
certed activities for the purpose of . . . other mutual aid or
protection.” This catchall term, they say, can be read to
include class and collective legal actions. But the term
appears at the end of a detailed list of activities speaking
of “self-organization,” “form[ing], join[ing], or assist[ing]
labor organizations,” and “bargain[ing] collectively.” 29
U.S. C. §157. And where, as here, a more general term
follows more specific terms in a list, the general term is
usually understood to “ ‘embrace only objects similar in
nature to those objects enumerated by the preceding spe-
cific words.’ ” Circuit City Stores, Inc. v. Adams, 532 U.S.
105, 115 (2001) (discussing ejusdem generis canon); Na-
tional Assn. of Mfrs. v. Department of Defense, 583 U. S.
___, ___ (2018) (slip op., at 10). All of which suggests that
the term “other concerted activities” should, like the terms
that precede it, serve to protect things employees “just do”
for themselves in the course of exercising their right to
free association in the workplace, rather than “the highly
regulated, courtroom-bound ‘activities’ of class and joint
litigation.” Alternative Entertainment, 858 F.3d, at 414–
415 (Sutton, J., concurring in part and dissenting in part)
(emphasis deleted). None of the preceding and more spe-
cific terms speaks to the procedures judges or arbitrators
must apply in disputes that leave the workplace and enter
the courtroom or arbitral forum, and there is no textually
sound reason to suppose the final catchall term should
bear such a radically different object than all its predeces-
sors.
The NLRA’s broader structure underscores the point.
After speaking of various “concerted activities” in Section
7, Congress proceeded to establish a regulatory regime
applicable to each of them. The NLRA provides rules for
Cite as: 584 U. S. ____ (2018) 13
Opinion of the Court
the recognition of exclusive bargaining representatives, 29
U.S. C. §159, explains employees’ and employers’ obliga-
tion to bargain collectively, §158(d), and conscribes certain
labor organization practices, §§158(a)(3), (b). The NLRA
also touches on other concerted activities closely related to
organization and collective bargaining, such as picketing,
§158(b)(7), and strikes, §163. It even sets rules for adjudi-
catory proceedings under the NLRA itself. §§160, 161.
Many of these provisions were part of the original NLRA
in 1935, see 49 Stat. 449, while others were added later.
But missing entirely from this careful regime is any hint
about what rules should govern the adjudication of class
or collective actions in court or arbitration. Without some
comparably specific guidance, it’s not at all obvious what
procedures Section 7 might protect. Would opt-out class
action procedures suffice? Or would opt-in procedures be
necessary? What notice might be owed to absent class
members? What standards would govern class certifica-
tion? Should the same rules always apply or should they
vary based on the nature of the suit? Nothing in the
NLRA even whispers to us on any of these essential ques-
tions. And it is hard to fathom why Congress would take
such care to regulate all the other matters mentioned in
Section 7 yet remain mute about this matter alone—
unless, of course, Section 7 doesn’t speak to class and
collective action procedures in the first place.
Telling, too, is the fact that when Congress wants to
mandate particular dispute resolution procedures it knows
exactly how to do so. Congress has spoken often and
clearly to the procedures for resolving “actions,” “claims,”
“charges,” and “cases” in statute after statute. E.g., 29
U.S. C. §§216(b), 626; 42 U.S. C. §§2000e–5(b), (f )(3)–(5).
Congress has likewise shown that it knows how to over-
ride the Arbitration Act when it wishes—by explaining, for
example, that, “[n]otwithstanding any other provision of
law, . . . arbitration may be used . . . only if ” certain condi-
14 EPIC SYSTEMS CORP. v. LEWIS
Opinion of the Court
tions are met, 15 U.S. C. §1226(a)(2); or that “[n]o predis-
pute arbitration agreement shall be valid or enforceable”
in other circumstances, 7 U.S. C. §26(n)(2); 12 U.S. C.
§5567(d)(2); or that requiring a party to arbitrate is “un-
lawful” in other circumstances yet, 10 U.S. C. §987(e)(3).
The fact that we have nothing like that here is further
evidence that Section 7 does nothing to address the ques-
tion of class and collective actions.
In response, the employees offer this slight reply. They
suggest that the NLRA doesn’t discuss any particular
class and collective action procedures because it merely
confers a right to use existing procedures provided by
statute or rule, “on the same terms as [they are] made
available to everyone else.” Brief for Respondent in No.
16–285, p. 53, n. 10. But of course the NLRA doesn’t say
even that much. And, besides, if the parties really take
existing class and collective action rules as they find them,
they surely take them subject to the limitations inherent
in those rules—including the principle that parties may
(as here) contract to depart from them in favor of individ-
ualized arbitration procedures of their own design.
Still another contextual clue yields the same message.
The employees’ underlying causes of action involve their
wages and arise not under the NLRA but under an en-
tirely different statute, the Fair Labor Standards Act. The
FLSA allows employees to sue on behalf of “themselves
and other employees similarly situated,” 29 U.S. C.
§216(b), and it’s precisely this sort of collective action the
employees before us wish to pursue. Yet they do not offer
the seemingly more natural suggestion that the FLSA
overcomes the Arbitration Act to permit their class and
collective actions. Why not? Presumably because this
Court held decades ago that an identical collective action
scheme (in fact, one borrowed from the FLSA) does not
displace the Arbitration Act or prohibit individualized
arbitration proceedings. Gilmer v. Interstate/Johnson
Cite as: 584 U. S. ____ (2018) 15
Opinion of the Court
Lane Corp., 500 U.S. 20, 32 (1991) (discussing Age Dis-
crimination in Employment Act). In fact, it turns out that
“[e]very circuit to consider the question” has held that the
FLSA allows agreements for individualized arbitration.
Alternative Entertainment, 858 F.3d, at 413 (opinion of
Sutton, J.) (collecting cases). Faced with that obstacle, the
employees are left to cast about elsewhere for help. And
so they have cast in this direction, suggesting that one
statute (the NLRA) steps in to dictate the procedures for
claims under a different statute (the FLSA), and thereby
overrides the commands of yet a third statute (the Arbi-
tration Act). It’s a sort of interpretive triple bank shot,
and just stating the theory is enough to raise a judicial
eyebrow.
Perhaps worse still, the employees’ theory runs afoul of
the usual rule that Congress “does not alter the funda-
mental details of a regulatory scheme in vague terms or
ancillary provisions—it does not, one might say, hide
elephants in mouseholes.” Whitman v. American Trucking
Assns., Inc., 531 U.S. 457, 468 (2001). Union organization
and collective bargaining in the workplace are the bread
and butter of the NLRA, while the particulars of dispute
resolution procedures in Article III courts or arbitration
proceedings are usually left to other statutes and rules—
not least the Federal Rules of Civil Procedure, the Arbitra-
tion Act, and the FLSA. It’s more than a little doubtful
that Congress would have tucked into the mousehole
of Section 7’s catchall term an elephant that tramples
the work done by these other laws; flattens the parties’
contracted-for dispute resolution procedures; and seats the
Board as supreme superintendent of claims arising under
a statute it doesn’t even administer.
Nor does it help to fold yet another statute into the mix.
At points, the employees suggest that the Norris-
LaGuardia Act, a precursor of the NLRA, also renders
their arbitration agreements unenforceable. But the
16 EPIC SYSTEMS CORP. v. LEWIS
Opinion of the Court
Norris-LaGuardia Act adds nothing here. It declares
“[un]enforceable” contracts that conflict with its policy of
protecting workers’ “concerted activities for the purpose of
collective bargaining or other mutual aid or protection.”
29 U.S. C. §§102, 103. That is the same policy the NLRA
advances and, as we’ve seen, it does not conflict with
Congress’s statutory directions favoring arbitration. See
also Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235
(1970) (holding that the Norris-LaGuardia Act’s anti-
injunction provisions do not bar enforcement of arbitration
agreements).
What all these textual and contextual clues indicate, our
precedents confirm. In many cases over many years, this
Court has heard and rejected efforts to conjure conflicts
between the Arbitration Act and other federal statutes. In
fact, this Court has rejected every such effort to date (save
one temporary exception since overruled), with statutes
ranging from the Sherman and Clayton Acts to the Age
Discrimination in Employment Act, the Credit Repair
Organizations Act, the Securities Act of 1933, the Securi-
ties Exchange Act of 1934, and the Racketeer Influenced
and Corrupt Organizations Act. Italian Colors, 570 U.S.
228; Gilmer, 500 U.S. 20; CompuCredit Corp. v. Green-
wood, 565 U.S. 95 (2012); Rodriguez de Quijas v. Shear-
son/American Express, Inc., 490 U.S. 477 (1989) (over-
ruling Wilko v. Swan, 346 U.S. 427 (1953)); Shear-
son/American Express Inc. v. McMahon, 482 U.S. 220
(1987). Throughout, we have made clear that even a
statute’s express provision for collective legal actions does
not necessarily mean that it precludes “ ‘individual at-
tempts at conciliation’ ” through arbitration. Gilmer,
supra, at 32. And we’ve stressed that the absence of any
specific statutory discussion of arbitration or class actions
is an important and telling clue that Congress has not
displaced the Arbitration Act. CompuCredit, supra, at
103–104; McMahon, supra, at 227; Italian Colors, supra,
Cite as: 584 U. S. ____ (2018) 17
Opinion of the Court
at 234. Given so much precedent pointing so strongly in
one direction, we do not see how we might faithfully turn
the other way here.
Consider a few examples. In Italian Colors, this Court
refused to find a conflict between the Arbitration Act and
the Sherman Act because the Sherman Act (just like
the NLRA) made “no mention of class actions” and was
adopted before Rule 23 introduced its exception to the “usual
rule” of “individual” dispute resolution. 570 U.S., at 234
(internal quotation marks omitted). In Gilmer, this Court
“had no qualms in enforcing a class waiver in an arbitra-
tion agreement even though” the Age Discrimination in
Employment Act “expressly permitted collective legal
actions.” Italian Colors, supra, at 237 (citing Gilmer,
supra, at 32). And in CompuCredit, this Court refused to
find a conflict even though the Credit Repair Organiza-
tions Act expressly provided a “right to sue,” “repeated[ly]”
used the words “action ” and “court” and “class action,” and
even declared “[a]ny waiver” of the rights it provided to be
“void.” 565 U.S., at 99–100 (internal quotation marks
omitted). If all the statutes in all those cases did not
provide a congressional command sufficient to displace the
Arbitration Act, we cannot imagine how we might hold
that the NLRA alone and for the first time does so today.
The employees rejoin that our precedential story is
complicated by some of this Court’s cases interpreting
Section 7 itself. But, as it turns out, this Court’s Section 7
cases have usually involved just what you would expect
from the statute’s plain language: efforts by employees
related to organizing and collective bargaining in the
workplace, not the treatment of class or collective actions
in court or arbitration proceedings. See, e.g., NLRB v.
Washington Aluminum Co., 370 U.S. 9 (1962) (walkout to
protest workplace conditions); NLRB v. Textile Workers,
409 U.S. 213 (1972) (resignation from union and refusal
to strike); NLRB v. J. Weingarten, Inc., 420 U.S. 251
18 EPIC SYSTEMS CORP. v. LEWIS
Opinion of the Court
(1975) (request for union representation at disciplinary
interview). Neither do the two cases the employees cite
prove otherwise. In Eastex, Inc. v. NLRB, 437 U.S. 556,
558 (1978), we simply addressed the question whether a
union’s distribution of a newsletter in the workplace quali-
fied as a protected concerted activity. We held it did,
noting that it was “undisputed that the union undertook
the distribution in order to boost its support and improve
its bargaining position in upcoming contract negotiations,”
all part of the union’s “ ‘continuing organizational efforts.’ ”
Id., at 575, and n. 24. In NLRB v. City Disposal Systems,
Inc., 465 U.S. 822, 831–832 (1984), we held only that an
employee’s assertion of a right under a collective bargain-
ing agreement was protected, reasoning that the collective
bargaining “process—beginning with the organization of
the union, continuing into the negotiation of a collective-
bargaining agreement, and extending through the en-
forcement of the agreement—is a single, collective activ-
ity.” Nothing in our cases indicates that the NLRA guar-
antees class and collective action procedures, let alone for
claims arising under different statutes and despite the
express (and entirely unmentioned) teachings of the Arbi-
tration Act.
That leaves the employees to try to make something of
our dicta. The employees point to a line in Eastex observ-
ing that “it has been held” by other courts and the Board
“that the ‘mutual aid or protection’ clause protects em-
ployees from retaliation by their employers when they
seek to improve working conditions through resort to
administrative and judicial forums.” 437 U.S., at 565–
566; see also Brief for National Labor Relations Board in
No. 16–307, p. 15 (citing similar Board decisions). But
even on its own terms, this dicta about the holdings of
other bodies does not purport to discuss what procedures
an employee might be entitled to in litigation or arbitra-
tion. Instead this passage at most suggests only that
Cite as: 584 U. S. ____ (2018) 19
Opinion of the Court
“resort to administrative and judicial forums” isn’t “entirely
unprotected.” Id., at 566. Indeed, the Court proceeded
to explain that it did not intend to “address . . . the ques-
tion of what may constitute ‘concerted’ activities in this
[litigation] context.” Ibid., n. 15. So even the employees’
dicta, when viewed fairly and fully, doesn’t suggest that
individualized dispute resolution procedures might be
insufficient and collective procedures might be mandatory.
Neither should this come as a surprise given that not a
single one of the lower court or Board decisions Eastex
discussed went so far as to hold that Section 7 guarantees
a right to class or collective action procedures. As we’ve
seen, the Board did not purport to discover that right until
2012, and no federal appellate court accepted it until 2016.
See D. R. Horton, 357 N. L. R. B. 2277; 823 F.3d 1147
(case below in No. 16–285).
With so much against them in the statute and our prec-
edent, the employees end by seeking shelter in Chevron.
Even if this Court doesn’t see what they see in Section 7,
the employees say we must rule for them anyway because
of the deference this Court owes to an administrative
agency’s interpretation of the law. To be sure, the em-
ployees do not wish us to defer to the general counsel’s
judgment in 2010 that the NLRA and the Arbitration Act
coexist peaceably; they wish us to defer instead to the
Board’s 2012 opinion suggesting the NLRA displaces the
Arbitration Act. No party to these cases has asked us to
reconsider Chevron deference. Cf. SAS Institute Inc. v.
Iancu, ante, at 11. But even under Chevron’s terms, no
deference is due. To show why, it suffices to outline just a
few of the most obvious reasons.
The Chevron Court justified deference on the premise
that a statutory ambiguity represents an “implicit” delega-
tion to an agency to interpret a “statute which it adminis-
ters.” 467 U.S., at 841, 844. Here, though, the Board
hasn’t just sought to interpret its statute, the NLRA, in
20 EPIC SYSTEMS CORP. v. LEWIS
Opinion of the Court
isolation; it has sought to interpret this statute in a way
that limits the work of a second statute, the Arbitration
Act. And on no account might we agree that Congress
implicitly delegated to an agency authority to address the
meaning of a second statute it does not administer. One of
Chevron’s essential premises is simply missing here.
It’s easy, too, to see why the “reconciliation” of distinct
statutory regimes “is a matter for the courts,” not agen-
cies. Gordon v. New York Stock Exchange, Inc., 422 U.S.
659, 685–686 (1975). An agency eager to advance its
statutory mission, but without any particular interest in
or expertise with a second statute, might (as here) seek to
diminish the second statute’s scope in favor of a more
expansive interpretation of its own—effectively “ ‘boot-
strap[ping] itself into an area in which it has no jurisdic-
tion.’ ” Adams Fruit Co. v. Barrett, 494 U.S. 638, 650
(1990). All of which threatens to undo rather than honor
legislative intentions. To preserve the balance Congress
struck in its statutes, courts must exercise independent
interpretive judgment. See Hoffman Plastic Compounds,
Inc. v. NLRB, 535 U.S. 137, 144 (2002) (noting that this
Court has “never deferred to the Board’s remedial prefer-
ences where such preferences potentially trench upon
federal statutes and policies unrelated to the NLRA”).
Another justification the Chevron Court offered for
deference is that “policy choices” should be left to Execu-
tive Branch officials “directly accountable to the people.”
467 U.S., at 865. But here the Executive seems of two
minds, for we have received competing briefs from the
Board and from the United States (through the Solicitor
General) disputing the meaning of the NLRA. And what-
ever argument might be mustered for deferring to the
Executive on grounds of political accountability, surely it
becomes a garble when the Executive speaks from both
sides of its mouth, articulating no single position on which
it might be held accountable. See Hemel & Nielson, Chev-
Cite as: 584 U. S. ____ (2018) 21
Opinion of the Court
ron Step One-and-a-Half, 84 U. Chi. L. Rev. 757, 808
(2017) (“If the theory undergirding Chevron is that voters
should be the judges of the executive branch’s policy choices,
then presumably the executive branch should have to
take ownership of those policy choices so that voters know
whom to blame (and to credit)”). In these circumstances,
we will not defer.
Finally, the Chevron Court explained that deference is
not due unless a “court, employing traditional tools of
statutory construction,” is left with an unresolved ambigu-
ity. 467 U.S., at 843, n. 9. And that too is missing: the
canon against reading conflicts into statutes is a tradi-
tional tool of statutory construction and it, along with the
other traditional canons we have discussed, is more than
up to the job of solving today’s interpretive puzzle. Where,
as here, the canons supply an answer, “Chevron leaves the
stage.” Alternative Entertainment, 858 F.3d, at 417 (opin-
ion of Sutton, J.).
IV
The dissent sees things a little bit differently. In its
view, today’s decision ushers us back to the Lochner era
when this Court regularly overrode legislative policy
judgments. The dissent even suggests we have resur-
rected the long-dead “yellow dog” contract. Post, at 3–17,
30 (opinion of GINSBURG, J.). But like most apocalyptic
warnings, this one proves a false alarm. Cf. L. Tribe,
American Constitutional Law 435 (1978) (“ ‘Lochnerizing’
has become so much an epithet that the very use of the
label may obscure attempts at understanding”).
Our decision does nothing to override Congress’s policy
judgments. As the dissent recognizes, the legislative
policy embodied in the NLRA is aimed at “safeguard[ing],
first and foremost, workers’ rights to join unions and to
engage in collective bargaining.” Post, at 8. Those rights
stand every bit as strong today as they did yesterday. And
22 EPIC SYSTEMS CORP. v. LEWIS
Opinion of the Court
rather than revive “yellow dog” contracts against union
organizing that the NLRA outlawed back in 1935, today’s
decision merely declines to read into the NLRA a novel
right to class action procedures that the Board’s own
general counsel disclaimed as recently as 2010.
Instead of overriding Congress’s policy judgments,
today’s decision seeks to honor them. This much the
dissent surely knows. Shortly after invoking the specter of
Lochner, it turns around and criticizes the Court for trying
too hard to abide the Arbitration Act’s “ ‘liberal federal
policy favoring arbitration agreements,’ ” Howsam v. Dean
Witter Reynolds, Inc., 537 U.S. 79, 83 (2002), saying we
“ ‘ski’ ” too far down the “ ‘slippery slope’ ” of this Court’s
arbitration precedent, post, at 23. But the dissent’s real
complaint lies with the mountain of precedent itself. The
dissent spends page after page relitigating our Arbitration
Act precedents, rehashing arguments this Court has heard
and rejected many times in many cases that no party has
asked us to revisit. Compare post, at 18–23, 26 (criticizing
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614 (1985), Gilmer, 500 U.S. 20, Circuit City,
532 U.S. 105, Concepcion, 563 U.S. 333, Italian Colors,
570 U.S. 228, and CompuCredit, 565 U.S. 95), with
Mitsubishi, supra, at 645–650 (Stevens, J., dissenting),
Gilmer, supra, at 36, 39–43 (Stevens, J., dissenting),
Circuit City, supra, at 124–129 (Stevens, J., dissenting),
Concepcion, supra, at 357–367 (BREYER, J., dissenting),
Italian Colors, supra, at 240–253 (KAGAN, J., dissenting),
and CompuCredit, supra, at 116–117 (GINSBURG, J.,
dissenting).
When at last it reaches the question of applying our
precedent, the dissent offers little, and understandably so.
Our precedent clearly teaches that a contract defense
“conditioning the enforceability of certain arbitration
agreements on the availability of classwide arbitration
procedures” is inconsistent with the Arbitration Act and
Cite as: 584 U. S. ____ (2018) 23
Opinion of the Court
its saving clause. Concepcion, supra, at 336 (opinion of the
Court). And that, of course, is exactly what the employees’
proffered defense seeks to do.
Nor is the dissent’s reading of the NLRA any more
available to us than its reading of the Arbitration Act.
The dissent imposes a vast construction on Section 7’s
language. Post, at 9. But a statute’s meaning does not
always “turn solely” on the broadest imaginable “defini-
tions of its component words.” Yates v. United States, 574
U. S. ___, ___ (2015) (plurality opinion) (slip op., at 7).
Linguistic and statutory context also matter. We have
offered an extensive explanation why those clues support
our reading today. By contrast, the dissent rests its inter-
pretation on legislative history. Post, at 3–5; see also post,
at 19–21. But legislative history is not the law. “It is the
business of Congress to sum up its own debates in its
legislation,” and once it enacts a statute “ ‘[w]e do not
inquire what the legislature meant; we ask only what the
statute means.’ ” Schwegmann Brothers v. Calvert Distill-
ers Corp., 341 U.S. 384, 396, 397 (1951) (Jackson, J.,
concurring) (quoting Justice Holmes). Besides, when it
comes to the legislative history here, it seems Congress
“did not discuss the right to file class or consolidated
claims against employers.” D. R. Horton, 737 F.3d, at
361. So the dissent seeks instead to divine messages from
congressional commentary directed to different questions
altogether—a project that threatens to “substitute [the
Court] for the Congress.” Schwegmann, supra, at 396.
Nor do the problems end there. The dissent proceeds to
argue that its expansive reading of the NLRA conflicts
with and should prevail over the Arbitration Act. The
NLRA leaves the Arbitration Act without force, the dissent
says, because it provides the more “pinpointed” direction.
Post, at 25. Even taken on its own terms, though, this
argument quickly faces trouble. The dissent says the
NLRA is the more specific provision because it supposedly
24 EPIC SYSTEMS CORP. v. LEWIS
Opinion of the Court
“speaks directly to group action by employees,” while the
Arbitration Act doesn’t speak to such actions. Ibid. But
the question before us is whether courts must enforce
particular arbitration agreements according to their
terms. And it’s the Arbitration Act that speaks directly to
the enforceability of arbitration agreements, while the
NLRA doesn’t mention arbitration at all. So if forced to
choose between the two, we might well say the Arbitration
Act offers the more on-point instruction. Of course, there
is no need to make that call because, as our precedents
demand, we have sought and found a persuasive interpre-
tation that gives effect to all of Congress’s work, not just
the parts we might prefer.
Ultimately, the dissent retreats to policy arguments. It
argues that we should read a class and collective action
right into the NLRA to promote the enforcement of wage
and hour laws. Post, at 26–30. But it’s altogether unclear
why the dissent expects to find such a right in the NLRA
rather than in statutes like the FLSA that actually regu-
late wages and hours. Or why we should read the NLRA
as mandating the availability of class or collective actions
when the FLSA expressly authorizes them yet allows
parties to contract for bilateral arbitration instead. 29
U.S. C. §216(b); Gilmer, supra, at 32. While the dissent is
no doubt right that class actions can enhance enforcement
by “spread[ing] the costs of litigation,” post, at 9, it’s also
well known that they can unfairly “plac[e] pressure on the
defendant to settle even unmeritorious claims,” Shady
Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559
U.S. 393, 445, n. 3 (2010) (GINSBURG, J., dissenting). The
respective merits of class actions and private arbitration
as means of enforcing the law are questions constitution-
ally entrusted not to the courts to decide but to the policy-
makers in the political branches where those questions
remain hotly contested. Just recently, for example, one
federal agency banned individualized arbitration agree-
Cite as: 584 U. S. ____ (2018) 25
Opinion of the Court
ments it blamed for underenforcement of certain laws,
only to see Congress respond by immediately repealing
that rule. See 82 Fed. Reg. 33210 (2017) (cited post, at 28,
n. 15); Pub. L. 115–74, 131 Stat. 1243. This Court is not
free to substitute its preferred economic policies for those
chosen by the people’s representatives. That, we had
always understood, was Lochner’s sin.
*
The policy may be debatable but the law is clear: Con-
gress has instructed that arbitration agreements like
those before us must be enforced as written. While Con-
gress is of course always free to amend this judgment, we
see nothing suggesting it did so in the NLRA—much less
that it manifested a clear intention to displace the Arbi-
tration Act. Because we can easily read Congress’s stat-
utes to work in harmony, that is where our duty lies. The
judgments in Epic, No. 16–285, and Ernst & Young, No.
16–300, are reversed, and the cases are remanded for
further proceedings consistent with this opinion. The
judgment in Murphy Oil, No. 16–307, is affirmed.
So ordered.
Cite as: 584 U. S. ____ (2018) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 16–285, 16–300, 16–307
_________________
EPIC SYSTEMS CORPORATION, PETITIONER
16–285 v.
JACOB LEWIS;
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
ERNST & YOUNG LLP, ET AL., PETITIONERS
16–300 v.
STEPHEN MORRIS, ET AL.; AND
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD, PETITIONER
16–307 v.
MURPHY OIL USA, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 21, 2018]
JUSTICE THOMAS, concurring.
I join the Court’s opinion in full. I write separately to
add that the employees also cannot prevail under the plain
meaning of the Federal Arbitration Act. The Act declares
arbitration agreements “valid, irrevocable, and enforce-
able, save upon such grounds as exist at law or in equity for
the revocation of any contract.” 9 U.S. C. §2. As I have
previously explained, grounds for revocation of a contract
are those that concern “ ‘the formation of the arbitration
agreement.’ ” American Express Co. v. Italian Colors
2 EPIC SYSTEMS CORP. v. LEWIS
THOMAS, J., concurring
Restaurant, 570 U.S. 228, 239 (2013) (concurring opinion)
(quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333,
353 (2011) (THOMAS, J., concurring)). The employees
argue, among other things, that the class waivers in their
arbitration agreements are unenforceable because the
National Labor Relations Act makes those waivers illegal.
But illegality is a public-policy defense. See Restatement
(Second) of Contracts §§178–179 (1979); McMullen v.
Hoffman, 174 U.S. 639, 669–670 (1899). Because
“[r]efusal to enforce a contract for public-policy reasons
does not concern whether the contract was properly
made,” the saving clause does not apply here. Concepcion,
supra, at 357. For this reason, and the reasons in the
Court’s opinion, the employees’ arbitration agreements
must be enforced according to their terms.
Cite as: 584 U. S. ____ (2018) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 16–285, 16–300, 16–307
_________________
EPIC SYSTEMS CORPORATION, PETITIONER
16–285 v.
JACOB LEWIS;
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
ERNST & YOUNG LLP, ET AL., PETITIONERS
16–300 v.
STEPHEN MORRIS, ET AL.; AND
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD, PETITIONER
16–307 v.
MURPHY OIL USA, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 21, 2018]
JUSTICE GINSBURG, with whom JUSTICE BREYER,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
The employees in these cases complain that their em-
ployers have underpaid them in violation of the wage and
hours prescriptions of the Fair Labor Standards Act of
1938 (FLSA), 29 U.S. C. §201 et seq., and analogous state
laws. Individually, their claims are small, scarcely of a
size warranting the expense of seeking redress alone. See
Ruan, What’s Left To Remedy Wage Theft? How Arbitra-
tion Mandates That Bar Class Actions Impact Low-Wage
2 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
Workers, 2012 Mich. St. L. Rev. 1103, 1118–1119 (Ruan).
But by joining together with others similarly circum-
stanced, employees can gain effective redress for wage
underpayment commonly experienced. See id., at 1108–
1111. To block such concerted action, their employers
required them to sign, as a condition of employment,
arbitration agreements banning collective judicial and
arbitral proceedings of any kind. The question presented:
Does the Federal Arbitration Act (Arbitration Act or FAA),
9 U.S. C. §1 et seq., permit employers to insist that their
employees, whenever seeking redress for commonly expe-
rienced wage loss, go it alone, never mind the right
secured to employees by the National Labor Relations
Act (NLRA), 29 U.S. C. §151 et seq., “to engage in . . .
concerted activities” for their “mutual aid or protection”?
§157. The answer should be a resounding “No.”
In the NLRA and its forerunner, the Norris-LaGuardia
Act (NLGA), 29 U.S. C. §101 et seq., Congress acted on an
acute awareness: For workers striving to gain from their
employers decent terms and conditions of employment,
there is strength in numbers. A single employee, Con-
gress understood, is disarmed in dealing with an employer.
See NLRB v. Jones & Laughlin Steel Corp., 301 U.S.
1, 33–34 (1937). The Court today subordinates employee-
protective labor legislation to the Arbitration Act. In so
doing, the Court forgets the labor market imbalance that
gave rise to the NLGA and the NLRA, and ignores the
destructive consequences of diminishing the right of em-
ployees “to band together in confronting an employer.”
NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 835
(1984). Congressional correction of the Court’s elevation of
the FAA over workers’ rights to act in concert is urgently
in order.
To explain why the Court’s decision is egregiously
wrong, I first refer to the extreme imbalance once preva-
lent in our Nation’s workplaces, and Congress’ aim in the
Cite as: 584 U. S. ____ (2018) 3
GINSBURG, J., dissenting
NLGA and the NLRA to place employers and employees
on a more equal footing. I then explain why the Arbitra-
tion Act, sensibly read, does not shrink the NLRA’s protec-
tive sphere.
I
It was once the dominant view of this Court that “[t]he
right of a person to sell his labor upon such terms as he
deems proper is . . . the same as the right of the purchaser
of labor to prescribe [working] conditions.” Adair v. United
States, 208 U.S. 161, 174 (1908) (invalidating federal law
prohibiting interstate railroad employers from discharging
or discriminating against employees based on their mem-
bership in labor organizations); accord Coppage v. Kansas,
236 U.S. 1, 26 (1915) (invalidating state law prohibit-
ing employers from requiring employees, as a condition
of employment, to refrain or withdraw from union
membership).
The NLGA and the NLRA operate on a different prem-
ise, that employees must have the capacity to act collec-
tively in order to match their employers’ clout in setting
terms and conditions of employment. For decades, the
Court’s decisions have reflected that understanding. See
Jones & Laughlin Steel, 301 U.S. 1 (upholding the NLRA
against employer assault); cf. United States v. Darby, 312
U.S. 100 (1941) (upholding the FLSA).
A
The end of the 19th century and beginning of the 20th
was a tumultuous era in the history of our Nation’s labor
relations. Under economic conditions then prevailing,
workers often had to accept employment on whatever
terms employers dictated. See 75 Cong. Rec. 4502 (1932).
Aiming to secure better pay, shorter workdays, and safer
workplaces, workers increasingly sought to band together
to make their demands effective. See ibid.; H. Millis & E.
4 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
Brown, From the Wagner Act to Taft-Hartley: A Study of
National Labor Policy and Labor Relations 7–8 (1950).
Employers, in turn, engaged in a variety of tactics to
hinder workers’ efforts to act in concert for their mutual
benefit. See J. Seidman, The Yellow Dog Contract 11
(1932). Notable among such devices was the “yellow-dog
contract.” Such agreements, which employers required
employees to sign as a condition of employment, typically
commanded employees to abstain from joining labor un-
ions. See id., at 11, 56. Many of the employer-designed
agreements cast an even wider net, “proscrib[ing] all
manner of concerted activities.” Finkin, The Meaning and
Contemporary Vitality of the Norris-LaGuardia Act, 93
Neb. L. Rev. 6, 16 (2014); see Seidman, supra, at 59–60,
65–66. As a prominent United States Senator observed,
contracts of the yellow-dog genre rendered the “laboring
man . . . absolutely helpless” by “waiv[ing] his right . . . to
free association” and by requiring that he “singly present
any grievance he has.” 75 Cong. Rec. 4504 (remarks of
Sen. Norris).
Early legislative efforts to protect workers’ rights to
band together were unavailing. See, e.g., Coppage, 236
U.S., at 26; Frankfurter & Greene, Legislation Affecting
Labor Injunctions, 38 Yale L. J. 879, 889–890 (1929).
Courts, including this one, invalidated the legislation
based on then-ascendant notions about employers’ and
employees’ constitutional right to “liberty of contract.” See
Coppage, 236 U.S., at 26; Frankfurter & Greene, supra, at
890–891. While stating that legislatures could curtail
contractual “liberty” in the interest of public health, safety,
and the general welfare, courts placed outside those
bounds legislative action to redress the bargaining power
imbalance workers faced. See Coppage, 236 U.S., at
16–19.
In the 1930’s, legislative efforts to safeguard vulnerable
workers found more receptive audiences. As the Great
Cite as: 584 U. S. ____ (2018) 5
GINSBURG, J., dissenting
Depression shifted political winds further in favor of
worker-protective laws, Congress passed two statutes
aimed at protecting employees’ associational rights. First,
in 1932, Congress passed the NLGA, which regulates the
employer-employee relationship indirectly. Section 2 of
the Act declares:
“Whereas . . . the individual unorganized worker is
commonly helpless to exercise actual liberty of con-
tract and to protect his freedom of labor, . . . it is nec-
essary that he have full freedom of association, self-
organization, and designation of representatives of his
own choosing, . . . and that he shall be free from the
interference, restraint, or coercion of employers . . . in
the designation of such representatives or in self-
organization or in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.” 29 U.S. C. §102.
Section 3 provides that federal courts shall not enforce
“any . . . undertaking or promise in conflict with the public
policy declared in [§2].” §103.1 In adopting these provi-
sions, Congress sought to render ineffective employer-
imposed contracts proscribing employees’ concerted activity
of any and every kind. See 75 Cong. Rec. 4504–4505
(remarks of Sen. Norris) (“[o]ne of the objects” of the
NLGA was to “outlaw” yellow-dog contracts); Finkin,
supra, at 16 (contracts prohibiting “all manner of concerted
activities apart from union membership or support . . .
were understood to be ‘yellow dog’ contracts”). While
banning court enforcement of contracts proscribing con-
——————
1 Other provisions of the NLGA further rein in federal-court authority
to disturb employees’ concerted activities. See, e.g., 29 U.S. C. §104(d)
(federal courts lack jurisdiction to enjoin a person from “aiding any
person participating or interested in any labor dispute who is being
proceeded against in, or [who] is prosecuting, any action or suit in any
court of the United States or of any State”).
6 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
certed action by employees, the NLGA did not directly
prohibit coercive employer practices.
But Congress did so three years later, in 1935, when it
enacted the NLRA. Relevant here, §7 of the NLRA guar-
antees employees “the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection.” 29
U.S. C. §157 (emphasis added). Section 8(a)(1) safeguards
those rights by making it an “unfair labor practice” for an
employer to “interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in [§7].”
§158(a)(1). To oversee the Act’s guarantees, the Act estab-
lished the National Labor Relations Board (Board or
NLRB), an independent regulatory agency empowered to
administer “labor policy for the Nation.” San Diego Build-
ing Trades Council v. Garmon, 359 U.S. 236, 242 (1959);
see 29 U.S. C. §160.
Unlike earlier legislative efforts, the NLGA and the
NLRA had staying power. When a case challenging the
NLRA’s constitutionality made its way here, the Court, in
retreat from its Lochner-era contractual-“liberty” deci-
sions, upheld the Act as a permissible exercise of legisla-
tive authority. See Jones & Laughlin Steel, 301 U.S., at
33–34. The Court recognized that employees have a “fun-
damental right” to join together to advance their common
interests and that Congress, in lieu of “ignor[ing]” that
right, had elected to “safeguard” it. Ibid.
B
Despite the NLRA’s prohibitions, the employers in the
cases now before the Court required their employees to
sign contracts stipulating to submission of wage and hours
claims to binding arbitration, and to do so only one-by-
Cite as: 584 U. S. ____ (2018) 7
GINSBURG, J., dissenting
one.2 When employees subsequently filed wage and hours
claims in federal court and sought to invoke the collective-
litigation procedures provided for in the FLSA and Federal
Rules of Civil Procedure,3 the employers moved to compel
individual arbitration. The Arbitration Act, in their view,
requires courts to enforce their take-it-or-leave-it arbitra-
tion agreements as written, including the collective-
litigation abstinence demanded therein.
In resisting enforcement of the group-action foreclo-
sures, the employees involved in this litigation do not urge
——————
2 The Court’s opinion opens with the question: “Should employees and
employers be allowed to agree that any disputes between them will be
resolved through one-on-one arbitration?” Ante, at 1. Were the
“agreements” genuinely bilateral? Petitioner Epic Systems Corporation
e-mailed its employees an arbitration agreement requiring resolution of
wage and hours claims by individual arbitration. The agreement
provided that if the employees “continue[d] to work at Epic,” they would
“be deemed to have accepted th[e] Agreement.” App. to Pet. for Cert. in
No. 16–285, p. 30a. Ernst & Young similarly e-mailed its employees an
arbitration agreement, which stated that the employees’ continued
employment would indicate their assent to the agreement’s terms. See
App. in No. 16–300, p. 37. Epic’s and Ernst & Young’s employees thus
faced a Hobson’s choice: accept arbitration on their employer’s terms or
give up their jobs.
3 The FLSA establishes an opt-in collective-litigation procedure for
employees seeking to recover unpaid wages and overtime pay. See 29
U.S. C. §216(b). In particular, it authorizes “one or more employees” to
maintain an action “in behalf of himself or themselves and other
employees similarly situated.” Ibid. “Similarly situated” employees
may become parties to an FLSA collective action (and may share in the
recovery) only if they file written notices of consent to be joined
as parties. Ibid. The Federal Rules of Civil Procedure provide two
collective-litigation procedures relevant here. First, Rule 20(a) permits
individuals to join as plaintiffs in a single action if they assert claims
arising out of the same transaction or occurrence and their claims
involve common questions of law or fact. Second, Rule 23 establishes
an opt-out class-action procedure, pursuant to which “[o]ne or more
members of a class” may bring an action on behalf of the entire class if
specified prerequisites are met.
8 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
that they must have access to a judicial forum.4 They
argue only that the NLRA prohibits their employers from
denying them the right to pursue work-related claims in
concert in any forum. If they may be stopped by employer-
dictated terms from pursuing collective procedures in
court, they maintain, they must at least have access to
similar procedures in an arbitral forum.
C
Although the NLRA safeguards, first and foremost,
workers’ rights to join unions and to engage in collective
bargaining, the statute speaks more embracively. In
addition to protecting employees’ rights “to form, join, or
assist labor organizations” and “to bargain collectively
through representatives of their own choosing,” the Act
protects employees’ rights “to engage in other concerted
activities for the purpose of . . . mutual aid or protection.”
29 U.S. C. §157 (emphasis added); see, e.g., NLRB v.
Washington Aluminum Co., 370 U.S. 9, 14–15 (1962) (§7
protected unorganized employees when they walked off
the job to protest cold working conditions). See also 1 J.
Higgins, The Developing Labor Law 209 (6th ed. 2012)
(“Section 7 protects not only union-related activity but also
‘other concerted activities . . . for mutual aid or protec-
tion.’ ”); 1 N. Lareau, Labor and Employment Law
§1.01[1], p. 1–2 (2017) (“Section 7 extended to employees
three federally protected rights: (1) the right to form and
join unions; (2) the right to bargain collectively (negotiate)
with employers about terms and conditions of employ-
ment; and (3) the right to work in concert with another
employee or employees to achieve employment-related
goals.” (emphasis added)).
——————
4 Notably, one employer specified that if the provisions confining em-
ployees to individual proceedings are “unenforceable,” “any claim
brought on a class, collective, or representative action basis must be
filed in . . . court.” App. to Pet. for Cert. in No. 16–285, at 35a.
Cite as: 584 U. S. ____ (2018) 9
GINSBURG, J., dissenting
Suits to enforce workplace rights collectively fit com-
fortably under the umbrella “concerted activities for the
purpose of . . . mutual aid or protection.” 29 U.S. C. §157.
“Concerted” means “[p]lanned or accomplished together;
combined.” American Heritage Dictionary 381 (5th ed.
2011). “Mutual” means “reciprocal.” Id., at 1163. When
employees meet the requirements for litigation of shared
legal claims in joint, collective, and class proceedings, the
litigation of their claims is undoubtedly “accomplished
together.” By joining hands in litigation, workers can
spread the costs of litigation and reduce the risk of em-
ployer retaliation. See infra, at 27–28.
Recognizing employees’ right to engage in collective
employment litigation and shielding that right from em-
ployer blockage are firmly rooted in the NLRA’s design.
Congress expressed its intent, when it enacted the NLRA,
to “protec[t] the exercise by workers of full freedom of
association,” thereby remedying “[t]he inequality of bar-
gaining power” workers faced. 29 U.S. C. §151; see, e.g.,
Eastex, Inc. v. NLRB, 437 U.S. 556, 567 (1978) (the Act’s
policy is “to protect the right of workers to act together to
better their working conditions” (internal quotation marks
omitted)); City Disposal, 465 U.S., at 835 (“[I]n enacting
§7 of the NLRA, Congress sought generally to equalize the
bargaining power of the employee with that of his employer
by allowing employees to band together in confronting an
employer regarding the terms and conditions of their
employment.”). See also supra, at 5–6. There can be no
serious doubt that collective litigation is one way workers
may associate with one another to improve their lot.
Since the Act’s earliest days, the Board and federal
courts have understood §7’s “concerted activities” clause to
protect myriad ways in which employees may join together
to advance their shared interests. For example, the Board
and federal courts have affirmed that the Act shields
employees from employer interference when they partici-
10 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
pate in concerted appeals to the media, e.g., NLRB v. Peter
Cailler Kohler Swiss Chocolates Co., 130 F.2d 503, 505–
506 (CA2 1942), legislative bodies, e.g., Bethlehem Ship-
building Corp. v. NLRB, 114 F.2d 930, 937 (CA1 1940),
and government agencies, e.g., Moss Planing Mill Co., 103
N. L. R. B. 414, 418–419, enf’d, 206 F.2d 557 (CA4 1953).
“The 74th Congress,” this Court has noted, “knew well
enough that labor’s cause often is advanced on fronts other
than collective bargaining and grievance settlement within
the immediate employment context.” Eastex, 437 U.S.,
at 565.
Crucially important here, for over 75 years, the Board
has held that the NLRA safeguards employees from em-
ployer interference when they pursue joint, collective, and
class suits related to the terms and conditions of their
employment. See, e.g., Spandsco Oil and Royalty Co., 42
N. L. R. B. 942, 948–949 (1942) (three employees’ joint
filing of FLSA suit ranked as concerted activity protected
by the NLRA); Poultrymen’s Service Corp., 41 N. L. R. B.
444, 460–463, and n. 28 (1942) (same with respect to
employee’s filing of FLSA suit on behalf of himself and
others similarly situated), enf’d, 138 F.2d 204 (CA3 1943);
Sarkes Tarzian, Inc., 149 N. L. R. B. 147, 149, 153 (1964)
(same with respect to employees’ filing class libel suit);
United Parcel Service, Inc., 252 N. L. R. B. 1015, 1018
(1980) (same with respect to employee’s filing class action
regarding break times), enf’d, 677 F.2d 421 (CA6 1982);
Harco Trucking, LLC, 344 N. L. R. B. 478, 478–479 (2005)
(same with respect to employee’s maintaining class action
regarding wages). For decades, federal courts have en-
dorsed the Board’s view, comprehending that “the filing of
a labor related civil action by a group of employees is
ordinarily a concerted activity protected by §7.” Leviton
Mfg. Co. v. NLRB, 486 F.2d 686, 689 (CA1 1973); see, e.g.,
Brady v. National Football League, 644 F.3d 661, 673
Cite as: 584 U. S. ____ (2018) 11
GINSBURG, J., dissenting
(CA8 2011) (similar).5 The Court pays scant heed to this
longstanding line of decisions.6
D
In face of the NLRA’s text, history, purposes, and
longstanding construction, the Court nevertheless con-
cludes that collective proceedings do not fall within the
scope of §7. None of the Court’s reasons for diminishing §7
should carry the day.
1
The Court relies principally on the ejusdem generis
canon. See ante, at 12. Observing that §7’s “other con-
certed activities” clause “appears at the end of a detailed
list of activities,” the Court says the clause should be read
——————
5 The Court cites, as purported evidence of contrary agency precedent,
a 2010 “Guideline Memorandum” that the NLRB’s then-General
Counsel issued to his staff. See ante, at 4, 19, 22. The General Counsel
appeared to conclude that employees have a §7 right to file collective
suits, but that employers can nonetheless require employees to sign
arbitration agreements waiving the right to maintain such suits. See
Memorandum GC 10–06, p. 7 (June 16, 2010). The memorandum
sought to address what the General Counsel viewed as tension between
longstanding precedent recognizing a §7 right to pursue collective
employment litigation and more recent court decisions broadly constru-
ing the FAA. The memorandum did not bind the Board, and the Board
never adopted the memorandum’s position as its own. See D. R.
Horton, 357 N. L. R. B. 2277, 2282 (2012), enf. denied in relevant part,
737 F.3d 344 (CA5 2013); Tr. of Oral Arg. 41. Indeed, shortly after the
General Counsel issued the memorandum, the Board rejected its
analysis, finding that it conflicted with Board precedent, rested on
erroneous factual premises, “defie[d] logic,” and was internally incoher-
ent. D. R. Horton, 357 N. L. R. B., at 2282–2283.
6 In 2012, the Board held that employer-imposed contracts barring
group litigation in any forum—arbitral or judicial—are unlawful. D. R.
Horton, 357 N. L. R. B. 2277. In so ruling, the Board simply applied its
precedents recognizing that (1) employees have a §7 right to engage in
collective employment litigation and (2) employers cannot lawfully
require employees to sign away their §7 rights. See id., at 2278, 2280.
It broke no new ground. But cf. ante, at 2, 19.
12 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
to “embrace” only activities “similar in nature” to those
set forth first in the list, ibid. (internal quotation marks
omitted), i.e., “ ‘self-organization,’ ‘form[ing], join[ing],
or assist[ing] labor organizations,’ and ‘bargain[ing] collec-
tively,’ ” ibid. The Court concludes that §7 should, there-
fore, be read to protect “things employees ‘just do’ for
themselves.” Ibid. (quoting NLRB v. Alternative Enter-
tainment, Inc., 858 F.3d 393, 415 (CA6 2017) (Sutton, J.,
concurring in part and dissenting in part); emphasis de-
leted). It is far from apparent why joining hands in litiga-
tion would not qualify as “things employees just do for
themselves.” In any event, there is no sound reason to
employ the ejusdem generis canon to narrow §7’s protec-
tions in the manner the Court suggests.
The ejusdem generis canon may serve as a useful guide
where it is doubtful Congress intended statutory words or
phrases to have the broad scope their ordinary meaning
conveys. See Russell Motor Car Co. v. United States, 261
U.S. 514, 519 (1923). Courts must take care, however,
not to deploy the canon to undermine Congress’ efforts to
draft encompassing legislation. See United States v.
Powell, 423 U.S. 87, 90 (1975) (“[W]e would be justified in
narrowing the statute only if such a narrow reading was
supported by evidence of congressional intent over and
above the language of the statute.”). Nothing suggests
that Congress envisioned a cramped construction of the
NLRA. Quite the opposite, Congress expressed an em-
bracive purpose in enacting the legislation, i.e., to “pro-
tec[t] the exercise by workers of full freedom of associa-
tion.” 29 U.S. C. §151; see supra, at 9.
2
In search of a statutory hook to support its application
of the ejusdem generis canon, the Court turns to the
NLRA’s “structure.” Ante, at 12. Citing a handful of
provisions that touch upon unionization, collective bar-
Cite as: 584 U. S. ____ (2018) 13
GINSBURG, J., dissenting
gaining, picketing, and strikes, the Court asserts that the
NLRA “establish[es] a regulatory regime” governing each
of the activities protected by §7. Ante, at 12–13. That
regime, the Court says, offers “specific guidance” and
“rules” regulating each protected activity. Ante, at 13.
Observing that none of the NLRA’s provisions explicitly
regulates employees’ resort to collective litigation, the
Court insists that “it is hard to fathom why Congress
would take such care to regulate all the other matters
mentioned in [§7] yet remain mute about this matter
alone—unless, of course, [§7] doesn’t speak to class and
collective action procedures in the first place.” Ibid.
This argument is conspicuously flawed. When Congress
enacted the NLRA in 1935, the only §7 activity Congress
addressed with any specificity was employees’ selection of
collective-bargaining representatives. See 49 Stat. 453.
The Act did not offer “specific guidance” about employees’
rights to “form, join, or assist labor organizations.” Nor
did it set forth “specific guidance” for any activity falling
within §7’s “other concerted activities” clause. The only
provision that touched upon an activity falling within that
clause stated: “Nothing in this Act shall be construed so as
to interfere with or impede or diminish in any way the
right to strike.” Id., at 457. That provision hardly offered
“specific guidance” regarding employees’ right to strike.
Without much in the original Act to support its “struc-
ture” argument, the Court cites several provisions that
Congress added later, in response to particular concerns.
Compare 49 Stat. 449–457 with 61 Stat. 142–143 (1947)
(adding §8(d) to provide guidance regarding employees’
and employers’ collective-bargaining obligations); 61 Stat.
141–142 (amending §8(a) and adding §8(b) to proscribe
specified labor organization practices); 73 Stat. 544 (1959)
(adding §8(b)(7) to place restrictions on labor organiza-
tions’ right to picket employers). It is difficult to compre-
hend why Congress’ later inclusion of specific guidance
14 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
regarding some of the activities protected by §7 sheds any
light on Congress’ initial conception of §7’s scope.
But even if each of the provisions the Court cites had
been included in the original Act, they still would provide
little support for the Court’s conclusion. For going on 80
years now, the Board and federal courts—including this
one—have understood §7 to protect numerous activities
for which the Act provides no “specific” regulatory guid-
ance. See supra, at 9–10.
3
In a related argument, the Court maintains that the
NLRA does not “even whispe[r]” about the “rules [that]
should govern the adjudication of class or collective actions
in court or arbitration.” Ante, at 13. The employees here
involved, of course, do not look to the NLRA for the proce-
dures enabling them to vindicate their employment rights
in arbitral or judicial forums. They assert that the Act
establishes their right to act in concert using existing,
generally available procedures, see supra, at 7, n. 3, and to
do so free from employer interference. The FLSA and the
Federal Rules on joinder and class actions provide the
procedures pursuant to which the employees may ally to
pursue shared legal claims. Their employers cannot law-
fully cut off their access to those procedures, they urge,
without according them access to similar procedures in
arbitral forums. See, e.g., American Arbitration Assn.,
Supplementary Rules for Class Arbitrations (2011).
To the employees’ argument, the Court replies: If the
employees “really take existing class and collective action
rules as they find them, they surely take them subject to
the limitations inherent in those rules—including the
principle that parties may (as here) contract to depart
from them in favor of individualized arbitration proce-
dures.” Ante, at 14. The freedom to depart asserted by
the Court, as already underscored, is entirely one sided.
Cite as: 584 U. S. ____ (2018) 15
GINSBURG, J., dissenting
See supra, at 2–5. Once again, the Court ignores the
reality that sparked the NLRA’s passage: Forced to face
their employers without company, employees ordinarily
are no match for the enterprise that hires them. Employ-
ees gain strength, however, if they can deal with their
employers in numbers. That is the very reason why the
NLRA secures against employer interference employees’
right to act in concert for their “mutual aid or protection.”
29 U.S. C. §§151, 157, 158.
4
Further attempting to sow doubt about §7’s scope, the
Court asserts that class and collective procedures were
“hardly known when the NLRA was adopted in 1935.”
Ante, at 11. In particular, the Court notes, the FLSA’s
collective-litigation procedure postdated §7 “by years” and
Rule 23 “didn’t create the modern class action until 1966.”
Ibid.
First, one may ask, is there any reason to suppose that
Congress intended to protect employees’ right to act in
concert using only those procedures and forums available
in 1935? Congress framed §7 in broad terms, “en-
trust[ing]” the Board with “responsibility to adapt the Act
to changing patterns of industrial life.” NLRB v. J.
Weingarten, Inc., 420 U.S. 251, 266 (1975); see Pennsyl-
vania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212
(1998) (“[T]he fact that a statute can be applied in situa-
tions not expressly anticipated by Congress does not
demonstrate ambiguity. It demonstrates breadth.” (inter-
nal quotation marks omitted)). With fidelity to Congress’
aim, the Board and federal courts have recognized that the
NLRA shields employees from employer interference when
they, e.g., join together to file complaints with administra-
tive agencies, even if those agencies did not exist in 1935.
See, e.g., Wray Electric Contracting, Inc., 210 N. L. R. B.
757, 762 (1974) (the NLRA protects concerted filing of
16 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
complaint with the Occupational Safety and Health
Administration).
Moreover, the Court paints an ahistorical picture. As
Judge Wood, writing for the Seventh Circuit, cogently
explained, the FLSA’s collective-litigation procedure and
the modern class action were “not written on a clean
slate.” 823 F.3d 1147, 1154 (2016). By 1935, permissive
joinder was scarcely uncommon in courts of equity. See 7
C. Wright, A. Miller, & M. Kane, Federal Practice and
Procedure §1651 (3d ed. 2001). Nor were representative
and class suits novelties. Indeed, their origins trace back
to medieval times. See S. Yeazell, From Medieval Group
Litigation to the Modern Class Action 38 (1987). And
beyond question, “[c]lass suits long have been a part of
American jurisprudence.” 7A Wright, supra, §1751, at 12
(3d ed. 2005); see Supreme Tribe of Ben-Hur v. Cauble,
255 U.S. 356, 363 (1921). See also Brief for Constitutional
Accountability Center as Amicus Curiae 5–16 (describing
group litigation’s “rich history”). Early instances of joint
proceedings include cases in which employees allied to sue
an employer. E.g., Gorley v. Louisville, 23 Ky. 1782, 65 S.
W. 844 (1901) (suit to recover wages brought by ten mem-
bers of city police force on behalf of themselves and other
officers); Guiliano v. Daniel O’Connell’s Sons, 105 Conn.
695, 136 A. 677 (1927) (suit by two employees to recover
for injuries sustained while residing in housing provided
by their employer). It takes no imagination, then, to
comprehend that Congress, when it enacted the NLRA,
likely meant to protect employees’ joining together to
engage in collective litigation.7
——————
7 The Court additionally suggests that something must be amiss be-
cause the employees turn to the NLRA, rather than the FLSA, to resist
enforcement of the collective-litigation waivers. See ante, at 14–15.
But the employees’ reliance on the NLRA is hardly a reason to “raise a
judicial eyebrow.” Ante, at 15. The NLRA’s guiding purpose is to
protect employees’ rights to work together when addressing shared
Cite as: 584 U. S. ____ (2018) 17
GINSBURG, J., dissenting
E
Because I would hold that employees’ §7 rights include
the right to pursue collective litigation regarding their
wages and hours, I would further hold that the employer-
dictated collective-litigation stoppers, i.e., “waivers,” are
unlawful. As earlier recounted, see supra, at 6, §8(a)(1)
makes it an “unfair labor practice” for an employer to
“interfere with, restrain, or coerce” employees in the exer-
cise of their §7 rights. 29 U.S. C. §158(a)(1). Beyond
genuine dispute, an employer “interfere[s] with” and
“restrain[s]” employees in the exercise of their §7 rights by
mandating that they prospectively renounce those rights
in individual employment agreements.8 The law could
hardly be otherwise: Employees’ rights to band together to
meet their employers’ superior strength would be worth
precious little if employers could condition employment on
workers signing away those rights. See National Licorice
Co. v. NLRB, 309 U.S. 350, 364 (1940). Properly as-
sessed, then, the “waivers” rank as unfair labor practices
outlawed by the NLRA, and therefore unenforceable in
court. See Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 77
(1982) (“[O]ur cases leave no doubt that illegal promises
will not be enforced in cases controlled by the federal
law.”).9
——————
workplace grievances of whatever kind.
8 See, e.g., Bethany Medical Center, 328 N. L. R. B. 1094, 1105–1106
(1999) (holding employer violated §8(a)(1) by conditioning employees’
rehiring on the surrender of their right to engage in future walkouts);
Mandel Security Bureau Inc., 202 N. L. R. B. 117, 119, 122 (1973)
(holding employer violated §8(a)(1) by conditioning employee’s rein-
statement to former position on agreement that employee would refrain
from filing charges with the Board and from circulating work-related
petitions, and, instead, would “mind his own business”).
9 I would similarly hold that the NLGA renders the collective-
litigation waivers unenforceable. That Act declares it the public policy
of the United States that workers “shall be free from the interference,
restraint, or coercion of employers” when they engage in “concerted
18 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
II
Today’s decision rests largely on the Court’s finding in
the Arbitration Act “emphatic directions” to enforce arbi-
tration agreements according to their terms, including
collective-litigation prohibitions. Ante, at 6. Nothing in
the FAA or this Court’s case law, however, requires subor-
dination of the NLRA’s protections. Before addressing the
——————
activities” for their “mutual aid or protection.” 29 U.S. C. §102; see
supra, at 5. Section 3 provides that federal courts shall not enforce any
“promise in conflict with the [Act’s] policy.” §103. Because employer-
extracted collective-litigation waivers interfere with employees’ ability
to engage in “concerted activities” for their “mutual aid or protection,”
see supra, at 8–11, the arm-twisted waivers collide with the NLGA’s
stated policy; thus, no federal court should enforce them. See Finkin,
The Meaning and Contemporary Vitality of the Norris-LaGuardia Act,
93 Neb. L. Rev. 6 (2014).
Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235 (1970), provides no
support for the Court’s contrary conclusion. See ante, at 16. In Boys
Markets, an employer and a union had entered into a collective-
bargaining agreement, which provided that labor disputes would be
resolved through arbitration and that the union would not engage in
strikes, pickets, or boycotts during the life of the agreement. 398 U.S.,
at 238–239. When a dispute later arose, the union bypassed arbitration
and called a strike. Id., at 239. The question presented: Whether a
federal district court could enjoin the strike and order the parties to
arbitrate their dispute. The case required the Court to reconcile the
NLGA’s limitations on federal courts’ authority to enjoin employees’
concerted activities, see 29 U.S. C. §104, with §301(a) of the Labor
Management Relations Act, 1947, which grants federal courts the
power to enforce collective-bargaining agreements, see 29 U.S. C.
§185(a). The Court concluded that permitting district courts to enforce
no-strike and arbitration provisions in collective-bargaining agree-
ments would encourage employers to enter into such agreements,
thereby furthering federal labor policy. 398 U.S., at 252–253. That
case has little relevance here. It did not consider the enforceability of
arbitration provisions that require employees to arbitrate disputes only
one-by-one. Nor did it consider the enforceability of arbitration provi-
sions that an employer has unilaterally imposed on employees, as
opposed to provisions negotiated through collective-bargaining processes
in which employees can leverage their collective strength.
Cite as: 584 U. S. ____ (2018) 19
GINSBURG, J., dissenting
interaction between the two laws, I briefly recall the FAA’s
history and the domain for which that Act was designed.
A
1
Prior to 1925, American courts routinely declined to
order specific performance of arbitration agreements. See
Cohen & Dayton, The New Federal Arbitration Law, 12
Va. L. Rev. 265, 270 (1926). Growing backlogs in the
courts, which delayed the resolution of commercial dis-
putes, prompted the business community to seek legisla-
tion enabling merchants to enter into binding arbitration
agreements. See id., at 265. The business community’s
aim was to secure to merchants an expeditious, economical
means of resolving their disputes. See ibid. The Ameri-
can Bar Association’s Committee on Commerce, Trade and
Commercial Law took up the reins in 1921, drafting the
legislation Congress enacted, with relatively few changes,
four years later. See Committee on Commerce, Trade &
Commercial Law, The United States Arbitration Law and
Its Application, 11 A. B. A. J. 153 (1925).
The legislative hearings and debate leading up to the
FAA’s passage evidence Congress’ aim to enable mer-
chants of roughly equal bargaining power to enter into
binding agreements to arbitrate commercial disputes.
See, e.g., 65 Cong. Rec. 11080 (1924) (remarks of Rep.
Mills) (“This bill provides that where there are commercial
contracts and there is disagreement under the contract,
the court can [en]force an arbitration agreement in the
same way as other portions of the contract.”); Joint Hear-
ings on S. 1005 and H. R. 646 before the Subcommittees of
the Committees on the Judiciary, 68th Cong., 1st Sess.
(1924) (Joint Hearings) (consistently focusing on the need
for binding arbitration of commercial disputes).10
——————
10 American Bar Association member Julius H. Cohen, credited with
20 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
The FAA’s legislative history also shows that Congress
did not intend the statute to apply to arbitration provi-
sions in employment contracts. In brief, when the legisla-
tion was introduced, organized labor voiced concern. See
Hearing on S. 4213 and S. 4214 before the Subcommittee
of the Senate Committee on the Judiciary, 67th Cong., 4th
Sess., 9 (1923) (Hearing). Herbert Hoover, then Secretary
of Commerce, suggested that if there were “objection[s]” to
including “workers’ contracts in the law’s scheme,” Con-
gress could amend the legislation to say: “but nothing
herein contained shall apply to contracts of employment of
seamen, railroad employees, or any other class of workers
engaged in interstate or foreign commerce.” Id., at 14.
Congress adopted Secretary Hoover’s suggestion virtually
verbatim in §1 of the Act, see Joint Hearings 2; 9 U.S. C.
§1, and labor expressed no further opposition, see H. R.
Rep. No. 96, 68th Cong., 1st Sess., 1 (1924).11
Congress, it bears repetition, envisioned application of
the Arbitration Act to voluntary, negotiated agreements.
See, e.g., 65 Cong. Rec. 1931 (remarks of Rep. Graham)
(the FAA provides an “opportunity to enforce . . . an
agreement to arbitrate, when voluntarily placed in the
——————
drafting the legislation, wrote shortly after the FAA’s passage that the
law was designed to provide a means of dispute resolution “particularly
adapted to the settlement of commercial disputes.” Cohen & Dayton,
The New Federal Arbitration Law, 12 Va. L. Rev. 265, 279 (1926).
Arbitration, he and a colleague explained, is “peculiarly suited to the
disposition of the ordinary disputes between merchants as to questions
of fact—quantity, quality, time of delivery, compliance with terms of
payment, excuses for non-performance, and the like.” Id., at 281. “It
has a place also,” they noted, “in the determination of the simpler
questions of law” that “arise out of th[e] daily relations between mer-
chants, [for example,] the passage of title, [and] the existence of war-
ranties.” Ibid.
11 For fuller discussion of Congress’ intent to exclude employment
contracts from the FAA’s scope, see Circuit City Stores, Inc. v. Adams,
532 U.S. 105, 124–129 (2001) (Stevens, J., dissenting).
Cite as: 584 U. S. ____ (2018) 21
GINSBURG, J., dissenting
document by the parties to it”). Congress never endorsed
a policy favoring arbitration where one party sets the
terms of an agreement while the other is left to “take it or
leave it.” Hearing 9 (remarks of Sen. Walsh) (internal
quotation marks omitted); see Prima Paint Corp. v. Flood
& Conklin Mfg. Co., 388 U.S. 395, 403, n. 9 (1967) (“We
note that categories of contracts otherwise within the
Arbitration Act but in which one of the parties character-
istically has little bargaining power are expressly excluded
from the reach of the Act. See §1.”).
2
In recent decades, this Court has veered away from
Congress’ intent simply to afford merchants a speedy and
economical means of resolving commercial disputes. See
Sternlight, Panacea or Corporate Tool?: Debunking the
Supreme Court’s Preference for Binding Arbitration, 74
Wash. U. L. Q. 637, 644–674 (1996) (tracing the Court’s
evolving interpretation of the FAA’s scope). In 1983, the
Court declared, for the first time in the FAA’s then 58-
year history, that the FAA evinces a “liberal federal policy
favoring arbitration.” Moses H. Cone Memorial Hospital v.
Mercury Constr. Corp., 460 U.S. 1, 24 (1983) (involving an
arbitration agreement between a hospital and a construc-
tion contractor). Soon thereafter, the Court ruled, in a
series of cases, that the FAA requires enforcement of
agreements to arbitrate not only contract claims, but
statutory claims as well. E.g., Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985);
Shearson/American Express Inc. v. McMahon, 482 U.S.
220 (1987). Further, in 1991, the Court concluded in
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 23
(1991), that the FAA requires enforcement of agreements
to arbitrate claims arising under the Age Discrimination
in Employment Act of 1967, a workplace antidiscrimina-
tion statute. Then, in 2001, the Court ruled in Circuit City
22 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
Stores, Inc. v. Adams, 532 U.S. 105, 109 (2001), that the
Arbitration Act’s exemption for employment contracts
should be construed narrowly, to exclude from the Act’s
scope only transportation workers’ contracts.
Employers have availed themselves of the opportunity
opened by court decisions expansively interpreting the
Arbitration Act. Few employers imposed arbitration
agreements on their employees in the early 1990’s. After
Gilmer and Circuit City, however, employers’ exaction of
arbitration clauses in employment contracts grew steadily.
See, e.g., Economic Policy Institute (EPI), A. Colvin, The
Growing Use of Mandatory Arbitration 1–2, 4 (Sept. 27,
2017), available at https://www.epi.org/files/pdf/135056.pdf
(All Internet materials as visited May 18, 2018) (data
indicate only 2.1% of nonunionized companies imposed
mandatory arbitration agreements on their employees in
1992, but 53.9% do today). Moreover, in response to sub-
sequent decisions addressing class arbitration,12 employ-
ers have increasingly included in their arbitration agree-
ments express group-action waivers. See Ruan 1129;
——————
12 In Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), a
plurality suggested arbitration might proceed on a class basis where
not expressly precluded by an agreement. After Bazzle, companies
increasingly placed explicit collective-litigation waivers in consumer
and employee arbitration agreements. See Gilles, Opting Out of
Liability: The Forthcoming, Near-Total Demise of the Modern Class
Action, 104 Mich. L. Rev. 373, 409–410 (2005). In AT&T Mobility LLC
v. Concepcion, 563 U.S. 333 (2011), and American Express Co. v.
Italian Colors Restaurant, 570 U.S. 228 (2013), the Court held enforce-
able class-action waivers in the arbitration agreements at issue in those
cases. No surprise, the number of companies incorporating express
class-action waivers in consumer and employee arbitration agreements
spiked. See 2017 Carlton Fields Class Action Survey: Best Practices in
Reducing Cost and Managing Risk in Class Action Litigation 29 (2017),
available at https://www.classactionsurvey.com/pdf/2017-class-action-
survey.pdf (reporting that 16.1% of surveyed companies’ arbitration
agreements expressly precluded class actions in 2012, but 30.2% did so
in 2016).
Cite as: 584 U. S. ____ (2018) 23
GINSBURG, J., dissenting
Colvin, supra, at 6 (estimating that 23.1% of nonunionized
employees are now subject to express class-action waivers
in mandatory arbitration agreements). It is, therefore,
this Court’s exorbitant application of the FAA—stretching
it far beyond contractual disputes between merchants—
that led the NLRB to confront, for the first time in 2012,
the precise question whether employers can use arbitra-
tion agreements to insulate themselves from collective
employment litigation. See D. R. Horton, 357 N. L. R. B.
2277 (2012), enf. denied in relevant part, 737 F.3d 344
(CA5 2013). Compare ante, at 3–4 (suggesting the Board
broke new ground in 2012 when it concluded that the
NLRA prohibits employer-imposed arbitration agreements
that mandate individual arbitration) with supra, at 10–11
(NLRB decisions recognizing a §7 right to engage in collec-
tive employment litigation), and supra, at 17, n. 8 (NLRB
decisions finding employer-dictated waivers of §7 rights
unlawful).
As I see it, in relatively recent years, the Court’s Arbi-
tration Act decisions have taken many wrong turns. Yet,
even accepting the Court’s decisions as they are, nothing
compels the destructive result the Court reaches today.
Cf. R. Bork, The Tempting of America 169 (1990) (“Judges
. . . live on the slippery slope of analogies; they are not
supposed to ski it to the bottom.”).
B
Through the Arbitration Act, Congress sought “to make
arbitration agreements as enforceable as other contracts,
but not more so.” Prima Paint, 388 U.S., at 404, n. 12.
Congress thus provided in §2 of the FAA that the terms of
a written arbitration agreement “shall be valid, irrevoca-
ble, and enforceable, save upon such grounds as exist at
law or in equity for the revocation of any contract.” 9
U.S. C. §2 (emphasis added). Pursuant to this “saving
clause,” arbitration agreements and terms may be invali-
24 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
dated based on “generally applicable contract defenses,
such as fraud, duress, or unconscionability.” Doctor’s
Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996); see
ante, at 7.
Illegality is a traditional, generally applicable contract
defense. See 5 R. Lord, Williston on Contracts §12.1 (4th ed.
2009). “[A]uthorities from the earliest time to the present
unanimously hold that no court will lend its assistance in
any way towards carrying out the terms of an illegal con-
tract.” Kaiser Steel, 455 U.S., at 77 (quoting McMullen v.
Hoffman, 174 U.S. 639, 654 (1899)). For the reasons
stated supra, at 8–17, I would hold that the arbitration
agreements’ employer-dictated collective-litigation waivers
are unlawful. By declining to enforce those adhesive
waivers, courts would place them on the same footing as
any other contract provision incompatible with controlling
federal law. The FAA’s saving clause can thus achieve
harmonization of the FAA and the NLRA without under-
mining federal labor policy.
The Court urges that our case law—most forcibly, AT&T
Mobility LLC v. Concepcion, 563 U.S. 333 (2011)—rules
out reconciliation of the NLRA and the FAA through the
latter’s saving clause. See ante, at 6–9. I disagree. True,
the Court’s Arbitration Act decisions establish that the
saving clause “offers no refuge” for defenses that discrimi-
nate against arbitration, “either by name or by more
subtle methods.” Ante, at 7. The Court, therefore, has
rejected saving clause salvage where state courts have
invoked generally applicable contract defenses to discrim-
inate “covertly” against arbitration. Kindred Nursing
Centers L. P. v. Clark, 581 U. S. ___, ___ (2017) (slip op., at
5). In Concepcion, the Court held that the saving clause
did not spare the California Supreme Court’s invocation of
unconscionability doctrine to establish a rule blocking
enforcement of class-action waivers in adhesive consumer
contracts. 563 U.S., at 341–344, 346–352. Class proceed-
Cite as: 584 U. S. ____ (2018) 25
GINSBURG, J., dissenting
ings, the Court said, would “sacrific[e] the principal ad-
vantage of arbitration—its informality—and mak[e] the
process slower, more costly, and more likely to generate
procedural morass than final judgment.” Id., at 348.
Accordingly, the Court concluded, the California Supreme
Court’s rule, though derived from unconscionability doc-
trine, impermissibly disfavored arbitration, and therefore
could not stand. Id., at 346–352.
Here, however, the Court is not asked to apply a gener-
ally applicable contract defense to generate a rule discrim-
inating against arbitration. At issue is application of the
ordinarily superseding rule that “illegal promises will not
be enforced,” Kaiser Steel, 455 U.S., at 77, to invalidate
arbitration provisions at odds with the NLRA, a path-
marking federal statute. That statute neither discrimi-
nates against arbitration on its face, nor by covert opera-
tion. It requires invalidation of all employer-imposed
contractual provisions prospectively waiving employees’ §7
rights. See supra, at 17, and n. 8; cf. Kindred Nursing
Centers, 581 U. S., at ___, n. 2 (slip op., at 7, n. 2) (States
may enforce generally applicable rules so long as they do
not “single out arbitration” for disfavored treatment).
C
Even assuming that the FAA and the NLRA were in-
harmonious, the NLRA should control. Enacted later in
time, the NLRA should qualify as “an implied repeal” of
the FAA, to the extent of any genuine conflict. See Posa-
das v. National City Bank, 296 U.S. 497, 503 (1936).
Moreover, the NLRA should prevail as the more pinpointed,
subject-matter specific legislation, given that it speaks
directly to group action by employees to improve the terms
and conditions of their employment. See Radzanower v.
Touche Ross & Co., 426 U.S. 148, 153 (1976) (“a specific
statute” generally “will not be controlled or nullified by a
26 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
general one” (internal quotation marks omitted)).13
Citing statutory examples, the Court asserts that when
Congress wants to override the FAA, it does so expressly.
See ante, at 13–14. The statutes the Court cites, however,
are of recent vintage.14 Each was enacted during the time
this Court’s decisions increasingly alerted Congress that it
would be wise to leave not the slightest room for doubt if it
wants to secure access to a judicial forum or to provide a
green light for group litigation before an arbitrator or
court. See CompuCredit Corp. v. Greenwood, 565 U.S. 95,
116 (2012) (GINSBURG, J., dissenting). The Congress that
drafted the NLRA in 1935 was scarcely on similar alert.
III
The inevitable result of today’s decision will be the
underenforcement of federal and state statutes designed to
advance the well-being of vulnerable workers. See gener-
ally Sternlight, Disarming Employees: How American
Employers Are Using Mandatory Arbitration To Deprive
Workers of Legal Protections, 80 Brooklyn L. Rev. 1309
(2015).
The probable impact on wage and hours claims of the
kind asserted in the cases now before the Court is all too
evident. Violations of minimum-wage and overtime laws
are widespread. See Ruan 1109–1111; A. Bernhardt et al.,
Broken Laws, Unprotected Workers: Violations of Em-
ployment and Labor Laws in America’s Cities 11–16, 21–
22 (2009). One study estimated that in Chicago, Los
——————
13 Enacted, as was the NLRA, after passage of the FAA, the NLGA
also qualifies as a statute more specific than the FAA. Indeed, the
NLGA expressly addresses the enforceability of contract provisions that
interfere with employees’ ability to engage in concerted activities. See
supra, at 17, n. 9. Moreover, the NLGA contains an express repeal
provision, which provides that “[a]ll acts and parts of acts in conflict
with [the Act’s] provisions . . . are repealed.” 29 U.S. C. §115.
14 See 116 Stat. 1836 (2002); 120 Stat. 2267 (2006); 124 Stat. 1746
(2010); 124 Stat. 2035 (2010).
Cite as: 584 U. S. ____ (2018) 27
GINSBURG, J., dissenting
Angeles, and New York City alone, low-wage workers lose
nearly $3 billion in legally owed wages each year. Id., at
6. The U. S. Department of Labor, state labor depart-
ments, and state attorneys general can uncover and obtain
recoveries for some violations. See EPI, B. Meixell & R.
Eisenbrey, An Epidemic of Wage Theft Is Costing Workers
Hundreds of Millions of Dollars a Year 2 (2014), available
at https://www.epi.org/files/2014/wage-theft.pdf. Because
of their limited resources, however, government agencies
must rely on private parties to take a lead role in enforc-
ing wage and hours laws. See Brief for State of Maryland
et al. as Amici Curiae 29–33; Glover, The Structural Role
of Private Enforcement Mechanisms in Public Law, 53
Wm. & Mary L. Rev. 1137, 1150–1151 (2012) (Department
of Labor investigates fewer than 1% of FLSA-covered
employers each year).
If employers can stave off collective employment litiga-
tion aimed at obtaining redress for wage and hours infrac-
tions, the enforcement gap is almost certain to widen.
Expenses entailed in mounting individual claims will often
far outweigh potential recoveries. See id., at 1184–1185
(because “the FLSA systematically tends to generate low-
value claims,” “mechanisms that facilitate the economics
of claiming are required”); Sutherland v. Ernst & Young
LLP, 768 F. Supp. 2d 547, 552 (SDNY 2011) (finding that
an employee utilizing Ernst & Young’s arbitration pro-
gram would likely have to spend $200,000 to recover only
$1,867.02 in overtime pay and an equivalent amount in
liquidated damages); cf. Resnik, Diffusing Disputes: The
Public in the Private of Arbitration, the Private in Courts,
and the Erasure of Rights, 124 Yale L. J. 2804, 2904
(2015) (analyzing available data from the consumer con-
text to conclude that “private enforcement of small-value
claims depends on collective, rather than individual, ac-
tion”); Amchem Products, Inc. v. Windsor, 521 U.S. 591,
617 (1997) (class actions help “overcome the problem that
28 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
small recoveries do not provide the incentive for any indi-
vidual to bring a solo action prosecuting his or her rights”
(internal quotation marks omitted)).15
Fear of retaliation may also deter potential claimants
from seeking redress alone. See, e.g., Ruan 1119–1121;
Bernhardt, supra, at 3, 24–25. Further inhibiting single-
file claims is the slim relief obtainable, even of the injunc-
tive kind. See Califano v. Yamasaki, 442 U.S. 682, 702
(1979) (“[T]he scope of injunctive relief is dictated by the
extent of the violation established.”). The upshot: Em-
ployers, aware that employees will be disinclined to pur-
sue small-value claims when confined to proceeding one-
by-one, will no doubt perceive that the cost-benefit balance
of underpaying workers tips heavily in favor of skirting
legal obligations.
In stark contrast to today’s decision,16 the Court has
repeatedly recognized the centrality of group action to the
effective enforcement of antidiscrimination statutes. With
Court approbation, concerted legal actions have played a
critical role in enforcing prohibitions against workplace
discrimination based on race, sex, and other protected
characteristics. See, e.g., Griggs v. Duke Power Co., 401
U.S. 424 (1971); Automobile Workers v. Johnson Controls,
Inc., 499 U.S. 187 (1991). In this context, the Court has
comprehended that government entities charged with
enforcing antidiscrimination statutes are unlikely to be
funded at levels that could even begin to compensate for a
significant dropoff in private enforcement efforts. See
——————
15 Based on a 2015 study, the Bureau of Consumer Financial Protec-
tion found that “pre-dispute arbitration agreements are being widely
used to prevent consumers from seeking relief from legal violations on a
class basis, and that consumers rarely file individual lawsuits or
arbitration cases to obtain such relief.” 82 Fed. Reg. 33210 (2017).
16 The Court observes that class actions can be abused, see ante, at
24, but under its interpretation, even two employees would be stopped
from proceeding together.
Cite as: 584 U. S. ____ (2018) 29
GINSBURG, J., dissenting
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400,
401 (1968) (per curiam) (“When the Civil Rights Act of
1964 was passed, it was evident that enforcement would
prove difficult and that the Nation would have to rely in
part upon private litigation as a means of securing broad
compliance with the law.”). That reality, as just noted,
holds true for enforcement of wage and hours laws. See
supra, at 27.
I do not read the Court’s opinion to place in jeopardy
discrimination complaints asserting disparate-impact and
pattern-or-practice claims that call for proof on a group-
wide basis, see Brief for NAACP Legal Defense & Educa-
tional Fund, Inc., et al. as Amici Curiae 19–25, which
some courts have concluded cannot be maintained by solo
complainants, see, e.g., Chin v. Port Auth. of N. Y. & N. J.,
685 F.3d 135, 147 (CA2 2012) (pattern-or-practice method
of proving race discrimination is unavailable in non-class
actions). It would be grossly exorbitant to read the FAA to
devastate Title VII of the Civil Rights Act of 1964, 42
U.S. C. §2000e et seq., and other laws enacted to elimi-
nate, root and branch, class-based employment discrimi-
nation, see Albemarle Paper Co. v. Moody, 422 U.S. 405,
417, 421 (1975). With fidelity to the Legislature’s will, the
Court could hardly hold otherwise.
I note, finally, that individual arbitration of employee
complaints can give rise to anomalous results. Arbitration
agreements often include provisions requiring that out-
comes be kept confidential or barring arbitrators from
giving prior proceedings precedential effect. See, e.g., App.
to Pet. for Cert. in No. 16–285, p. 34a (Epic’s agreement);
App. in No. 16–300, p. 46 (Ernst & Young’s agreement).
As a result, arbitrators may render conflicting awards in
cases involving similarly situated employees—even em-
ployees working for the same employer. Arbitrators may
resolve differently such questions as whether certain jobs
are exempt from overtime laws. Cf. Encino Motor Cars,
30 EPIC SYSTEMS CORP. v. LEWIS
GINSBURG, J., dissenting
LLC v. Navarro, ante, p. ___ (Court divides on whether
“service advisors” are exempt from overtime-pay require-
ments). With confidentiality and no-precedential-value
provisions operative, irreconcilable answers would remain
unchecked.
* * *
If these untoward consequences stemmed from legisla-
tive choices, I would be obliged to accede to them. But the
edict that employees with wage and hours claims may
seek relief only one-by-one does not come from Congress.
It is the result of take-it-or-leave-it labor contracts hark-
ing back to the type called “yellow dog,” and of the readi-
ness of this Court to enforce those unbargained-for agree-
ments. The FAA demands no such suppression of the
right of workers to take concerted action for their “mutual
aid or protection.” Accordingly, I would reverse the judg-
ment of the Fifth Circuit in No. 16–307 and affirm the
judgments of the Seventh and Ninth Circuits in Nos. 16–
285 and 16–300.