States – The Final Frontier: How State Law and State Courts Can Provide Avenues for Justice and Resist the U.S. Supreme Court's "Lochner Lite" Anti-Employee and Anti-Consumer Agenda

Under the Courts jurisprudence, even though class and collective actions are often necessary for the enforcement of statutory rights and are explicitly embedded in statutes like the FLSA and Age Discrimination in Employment Act (ADEA), companies can now write these remedial procedures out of existen...

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Bibliographic Details
Published in:Labor law journal (Chicago) 2021-10, Vol.72 (3), p.125-145
Main Authors: Heisler, Jeremy, Melzer, Andrew, MacMullin, Kate
Format: Article
Language:English
Subjects:
Arbitration
Class action lawsuits
Consumers
COVID-19
Due process of law
Employees
Employers
Employment discrimination
Federal court decisions
Judges & magistrates
Jurisprudence
Labor law
Laboratories
State court decisions
State courts
State laws
Terminations
Wages & salaries
Waivers
Workers
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Summary:Under the Courts jurisprudence, even though class and collective actions are often necessary for the enforcement of statutory rights and are explicitly embedded in statutes like the FLSA and Age Discrimination in Employment Act (ADEA), companies can now write these remedial procedures out of existence. [...]the Supreme Court has nationalized its crusade so that even state court litigants can be forced into arbitration and deprived of class or collective relief that would be available to them under state class action rules. (See pgs. 29-46, infra) (IV)The Supreme Court has promulgated a rule that the statute of limitations in unlawful termination suits under federal law begins running even before the employment relationship ends and the employee leaves the job. When issues of state law implicate important rights, don't follow poorly-reasoned, business-biased decisions simply because they emanate from the U.S. Supreme Court.3 Similarly, federal judges who address state statutes should not be bound by hostile federal rulings but instead turn to state jurisprudence for the rule of decision. What's Past is Prologue Back to the Future: Substantive Due Process and Lochner v. New York (or, "Lochner Classic") For more than 50 years-during the late 19th and early 20th centuries-the Supreme Court commandeered the Constitution's due process clause in service of a freemarket ideology that entrenched corporate prerogatives and denied the most vulnerable Americans the right to humane working conditions and a livable wage.5 In essence, if an employer was able to compel workers to labor for low wages and long hours, it had a right to do so-without the interference of meddling humanitarian legislation or regulation.
ISSN:0023-6586