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In an Era of (Much) Less Government, We’ll Need Courts More Than Ever [1]

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Date: 2025-01-09

With Republicans controlling the House, Senate, and Executive Branch, we are about to enter an era of less effective government. Regulatory agencies will see smaller budgets, fewer staff, or even outright hostility from new leadership. However, workers, consumers, and communities will still have problems that need solving, regardless of whether the government agencies created to solve them are functioning. Luckily, many of our nation’s laws were designed with an additional enforcement mechanism: civil litigation.

What does civil litigation mean? In one word: lawsuits. But under the banner of so-called "tort reform," groups like the Chamber of Commerce have spent a tremendous amount of money to make the word “lawsuit” seem dirty, as if it's an unfortunate, unintended consequence of our legal system. In reality, many of our most important laws purposefully include civil litigation components so citizens can enforce their rights when the government is unable or unwilling to do so. Allowing companies like Tesla to force buyers and employees to give up their right to sue it in court undermines our ability to enforce fundamental consumer, worker, and civil protections. With the possibility that many agencies will shirk their duty to protect Americans, civil litigation may become the last enforcement mechanism standing.

Enforcing The Fair Labor Standards Act

To understand how limiting litigation quietly undermines a key right, consider how we fight wage theft. It is a deeply entrenched, widespread problem—an estimated $52 billion was stolen from workers in 2016 alone. When Congress wrote the Fair Labor Standards Act ( FLSA ), it tasked the Department of Labor (DOL) with enforcing federal wage and hour laws, but it knew there needed to be another enforcement mechanism. That's why the FLSA explicitly affirms that an employee may sue their employer in court for unpaid wages, individually or in a class action. Private litigation is written into the FLSA because it works: in 2015–16, the ten largest wage and hour class action settlements returned $1.2 billion to workers, more than every state and federal agency combined.

Instead of actually paying workers for their labor, corporate America chose another path: limiting their access to court. Over half of private-sector nonunion workers have lost the right to sue an employer for almost any reason. Accepting a job—or even keeping the job you already have—often also means accepting a bunch of nonnegotiable fine print terms, including waiving the right to take the company to court or join a class action. The mandatory alternative to court, arbitration, is presented as if it were a terrific boon to workers: it's fast! it’s efficient! it's so much better than that clunky old court system! However, companies regularly fight in court to protect their ability to shut the rest of us out—sometimes all the way to the United States Supreme Court.

In 2016, Public Justice represented Dominic Oliveira , a truck driver working for New Prime, Inc. After he finished his (unpaid) apprenticeship, New Prime convinced Dominic to start driving as an "independent contractor" rather than a company employee. Traditionally, in exchange for independence, a contractor assumes expenses ordinarily paid by the company, such as employment taxes or equipment. But at New Prime, the only real difference between contractors and employees was the cost shifting. After deductions, sometimes Dominic's paychecks were negative, putting him (and many other New Prime drivers) in the absurd position of paying the company to work there. Misclassifying workers as independent contractors is a common form of wage theft. When Dominic filed a lawsuit on behalf of himself and other drivers, New Prime fought like hell to force the case out of court, relying on the arbitration fine print in its standardized operating agreements. The Supreme Court ultimately ruled against New Prime, but the fine print often wins and workers seeking unpaid wages are told they must take their cases to a private arbitrator. Since the odds of being struck by lightning are higher than winning your case against a corporate opponent in arbitration, this is the legal equivalent of being told to go pound sand.

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