Epic Systems Corp. v. Lewis

(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

Cite as: 584 U. S. ____ (2018) 3

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

Cite as: 584 U. S. ____ (2018) 11

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.