The first Supreme Court argument of the new termsuggested the justices are divided over the power of employers toblock class-action lawsuits by workers and channel disputes intoarbitration.

In a case that could affect the rights of as many as 25 millionemployees, Justice Anthony Kennedy, often the court’s swing vote,suggested Monday through his questions that he would side withemployers. But the newest justice, Neil Gorsuch, said nothingduring the hour-long session, leaving the outcome of the caseunclear.

At issue is whether employers can enforce promises they extractfrom workers to pursue grievances as individual arbitration cases,rather than as group lawsuits in court.

Justice Ruth Bader Ginsburg called those agreements "yellow dog"contracts, a label that typically refers to the now-illegalpractice of requiring workers to give up their right to join aunion. Ginsburg said employees have little choice but to agree whenan employer demands they sign an arbitration agreement.

"There is no true liberty to contract on the part of theemployee," she said.

The justices are considering three disputes involving wage-and-hour claims, and the ruling probablywill apply to discrimination cases as well.

The workers say the 1935 National Labor Relations Act, whichprotects "concerted activities," guarantees them the right to pressclaims as a group, either in arbitration or in court. Employers andthe Trump administration point to the Federal Arbitration Act,which says judges must enforce arbitration accords like any othercontract. Employers say that provision applies even if it meansworkers must press claims individually.

Kennedy skepticism

Kennedy, Chief Justice John Roberts and Justice Samuel Alitoexpressed skepticism about the workers’ arguments. Kennedy saidworkers could get "many of the advantages" of a group claim byworking with the same attorney.

Over the past decade the Supreme Court has backed arbitrationagreements between companies and consumers or other businesses.

Companies say arbitration is more efficient and less expensivethan traditional litigation, reducing the pressure to settlemeritless cases. Critics say arbitration -- particularly when itincludes a ban on class actions -- can strip litigants of importantrights and make small claims all but impossible to press.

The workers’ lawyer, University of Virginia law professor DanielOrtiz, told the justices that 25 million employees have signedarbitration accords that bar group claims.

Although the Trump administration is backing the employers, theNational Labor Relations Board argued on the side of the workers inMonday’s session. The NLRB now has a Republican majority, but itsDemocratic-appointed general counsel, Richard Griffin, argued thecase.

The court will use three cases to decide the issue. One is anappeal by the NLRB in a fight over alleged underpayments to fourworkers at an Alabama gas station run by a Murphy USAInc. unit. The NLRB concluded the company engaged in an unfairlabor practice by refusing to let the workers pursue their claimstogether. A federal appeals court threw out the board’sfinding.

The court is also considering an appeal from Epic SystemsCorp., a health-care software company being sued by Jacob Lewis, anemployee who says the company misclassified him and other technicalwriters so that they wouldn’t be eligible for overtime.

The third appeal was filed by the accounting firm Ernst &Young LLP, which is fighting allegations that it also misclassifiedthousands of employees to make them ineligible for overtimepay.

The cases are Epic Systems v. Lewis, 16-285; Ernst & Youngv. Morris, 16-300; and NLRB v. Murphy Oil, 16-307. The court willdecide all three by June.

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