How Can Juries Help Combat America’s Wage Theft Issue?

American workers are a proud people - holding on firmly to the idea of the American dream - the idea that working hard will get you far. However, the prevalence of wage theft and other labor violations continue to hinder the ability of low-paid workers to attain social mobility and thus, perpetuates the cycle of poverty. For example, in 2019 alone, corporations succeeded in stealing a whopping $9.2 billion dollars from nonunion, private sector workers who made less than $13 per hour.

How is this type of wage theft from our working class possible? Well, one theory is that by allowing corporations to force arbitration, rather than enforcing workers’ rights to a jury trial, has completely tipped the balance of power in favor of corporations. 

While union workers have the chance to dodge arbitration, nonunion workers - the majority of which are unaware of their rights - are stuck facing a daunting, complex arbitration process to recover their lost wages. As a result, 98% of workers whose claims are subject to forced arbitration abandon or never bring their claims. To this end, American corporations have effectively and systematically robbing the poor to give back to the rich, in some sort of perverse, reverse Robin Hood reenactment. 

A pillar of our judicial system is the ability to be judged by our peers. The lack of enforcement of this important mechanism has contributed to denying workers a fair and just avenue to receive their deserved wages. Many labor rights activists contend that a jury trial will help workers to gain back power, as the juries would likely be made up of workers that may have experienced wage theft themselves or at the very least empathize with hard workers.

In the past, the most cost-effective and efficient way to pursue a jury trial for wage theft would have been joining a class action. Class actions aggregate all employees in similar situations against one employer and can sway juries by revealing a staggering amount of evidence that the employer had systematically abused their workers. Juries consistently respond favorably towards workers, presumably because the representation of their economic class is more likely, and reward plaintiffs far more than a forced arbitration. To illustrate this, the typical award per worker in forced arbitration ($36,500) is only 21% of the median award in a class action lawsuit in the federal courts ($176,426). Despite these glaring inequalities, in 2018, the Supreme decided in the landmark case Epic Systems Corp v. Lewis, that the class waiver provisions in arbitration agreements are valid, thus depriving workers of any recourse outside of arbitration.

The National Employment Law Project suggests that passing a federal law, the Forced Arbitration Injustice Act, could assist in remedying this power imbalance. The Forced Arbitration Injustice Repeal (FAIR) Act would “eliminate the use of forced arbitration and class/collective action waivers in employment and civil rights disputes, restoring workers’ right to bring their claims before a judge and jury. Restoring this right would likely generate increased compliance with federal and state wage-and-hour laws.”