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8 Nev. L.J. F. 1 (2024)

handle is hein.journals/nvljform8 and id is 1 raw text is: 8 NEV. L.J.F. 1 THE NEW YELLOW DOG CONTRACT: MANDATORY ARBITRATION AGREEMENTS AND COLLECTIVE ACTION WAIVERS IN THE AFTERMATH OF EPICSYSTEMS Eric Lundy Since the 1980s, the Supreme Court has consistently found arbitration agreements in employment contracts to be enforceable, citing a strongnational policy favoring arbitration. This line of cases came to its apogee in 2018 with Epic Systems Corp. v. Lewis. The Court held that the statutory right to engage in concerted activities for the purpose ofmutual aid orprotection did not confer upon employees the right to bring class actions against their employer when theyhad signed an arbitration agreement with a collective action waiver. While the Court's decision was widely criticized in the academic community, it sent a clearmessage to employers: you can stay out ofcourt simply byhaving employ- ees sign an arbitration agreement. Arbitration agreements and class action waivers call to mind the yellow dog contracts ofthe early twentieth century, which prohibited employees from joining a union as a condition ofemployment. Both arbitration clauses and yel- low dog contracts significantly restrict an employee's bargainingpower against his employer and run contrary to the free labor economy envisioned by the drafters of the Thirteenth Amendment. The current Court is unlikely to find that arbitration agreements and class action waivers create a system ofinvolun- tary servitude, but there are other measures state and local governments can take to help workers vindicate their statutory rights. For example, states and cities could pass laws similar to California's Private Attorneys General Act, which authorizes employees to sue on behalf of the state for labor-code viola- tions committed against them and otheremployees. Whateversolutions areim- plemented, they must ensure that they combat the modem-day yellow dog contract and help bring the Thirteenth Amendment's vision offree labor closer to fruition. * Juris Doctor Candidate, May 2024, William S. Boyd School of Law, University of Nevada, Las Vegas. Thank you to Professor Ruben Garcia, who first stimulated my interest in em- ployment arbitration and provided constant support and valuable feedback throughout the writing process. Thank you to the Nevada Law Journal Staff for the many hours spent carefully editing and shaping this Note into its final form. Finally, and most importantly, thank you to my partner, Kathryn Hayes, for your endless encouragement, support, and feedback. This would not have been possible without you. 1

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