A court just gutted your right to sue your boss

[Jim Lane]

59. Hopes don't rest entirely with SCOTUS.

This decision was by a panel (three judges) of the Fifth Circuit. On rare occasions, a decision is reheard en banc, meaning that all the judges on the court, in this case ten or so, take up the matter. The full Fifth Circuit might side with the dissenting judge.

Failing that, this is still binding only in the Fifth Circuit, covering several Southern states. Federal courts elsewhere in the country would certainly take account of this decision but are free to decide that the dissent had the better arguments. In that event, workers outside the Fifth Circuit would still have the right to bring class actions.

If such a conflict in the circuits does arise, of course, that makes it very likely that the issue would indeed go before SCOTUS, the only court that can resolve such conflicts.

It would be good for Congress to amend the Federal Arbitration Act to make clear that it doesn't abridge workers' statutory right to concerted action. In the current Congress, however, the best we could realistically hope for would be that the Senate passes such a bill, Boehner refuses to bring it to the floor of the House for a vote, and it just becomes one more issue for bashing Republicans in this year's campaigns.