II 112th CONGRESS 1st Session S. 987 IN THE SENATE OF THE UNITED STATES May 12, 2011 Mr. Franken (for himself, Mr. Blumenthal, Mr. Leahy, Mr. Durbin, Mr. Whitehouse, Mr. Brown of Ohio, Mr. Harkin, Mr. Kerry, Mr. Merkley, Mr. Udall of New Mexico, Mr. Wyden, Mr. Casey, and Mrs. Boxer) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 9 of the United States Code with respect to arbitration.

1.

Short title

This Act may be cited as the Arbitration Fairness Act of 2011.

2.

Findings

The Congress finds the following: (1)The Federal Arbitration Act (now enacted as chapter 1 of title 9 of the United States Code) was intended to apply to disputes between commercial entities of generally similar sophistication and bargaining power. (2)A series of decisions by the Supreme Court of the United States have changed the meaning of the Act so that it now extends to consumer disputes and employment disputes. (3)Most consumers and employees have little or no meaningful choice whether to submit their claims to arbitration. Often, consumers and employees are not even aware that they have given up their rights. (4)Mandatory arbitration undermines the development of public law because there is inadequate transparency and inadequate judicial review of arbitrators' decisions. (5)Arbitration can be an acceptable alternative when consent to the arbitration is truly voluntary, and occurs after the dispute arises.

3.

Arbitration of employment, consumer, and civil rights disputes

(a)

In general

Title 9 of the United States Code is amended by adding at the end the following: 4

Arbitration of employment, consumer, and civil rights disputes

Sec. 401. Definitions. 402. Validity and enforceability.

401.

Definitions

In this chapter— (1)the term civil rights dispute means a dispute— (A)arising under— (i)the Constitution of the United States or the constitution of a State; or (ii)a Federal or State statute that prohibits discrimination on the basis of race, sex, disability, religion, national origin, or any invidious basis in education, employment, credit, housing, public accommodations and facilities, voting, or program funded or conducted by the Federal Government or State government, including any statute enforced by the Civil Rights Division of the Department of Justice and any statute enumerated in section 62(e) of the Internal Revenue Code of 1986 (relating to unlawful discrimination); and (B)in which at least 1 party alleging a violation of the Constitution of the United States, a State constitution, or a statute prohibiting discrimination is an individual; (2)the term consumer dispute means a dispute between an individual who seeks or acquires real or personal property, services (including services relating to securities and other investments), money, or credit for personal, family, or household purposes and the seller or provider of such property, services, money, or credit; (3)the term employment dispute means a dispute between an employer and employee arising out of the relationship of employer and employee as defined in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203); and (4)the term predispute arbitration agreement means any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.

402.

Validity and enforceability

(a)

In general

Notwithstanding any other provision of this title, no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment dispute, consumer dispute, or civil rights dispute. (b)

Applicability

(1)

In general

An issue as to whether this chapter applies to an arbitration agreement shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement. (2)

Collective bargaining agreements

Nothing in this chapter shall apply to any arbitration provision in a contract between an employer and a labor organization or between labor organizations, except that no such arbitration provision shall have the effect of waiving the right of an employee to seek judicial enforcement of a right arising under a provision of the Constitution of the United States, a State constitution, or a Federal or State statute, or public policy arising therefrom.

. (b)

Technical and conforming amendments

(1)

In general

Title 9 of the United States Code is amended— (A)in section 1, by striking of seamen, and all that follows through interstate commerce; (B)in section 2, by inserting or as otherwise provided in chapter 4 before the period at the end; (C)in section 208— (i)in the section heading, by striking Chapter 1; residual application and inserting Application; and (ii)by adding at the end the following: This chapter applies to the extent that this chapter is not in conflict with chapter 4.; and (D)in section 307— (i)in the section heading, by striking Chapter 1; residual application and inserting Application; and (ii)by adding at the end the following: This chapter applies to the extent that this chapter is not in conflict with chapter 4.. (2)

Table of sections

(A)

Chapter 2

The table of sections for chapter 2 of title 9, United States Code, is amended by striking the item relating to section 208 and inserting the following: 208. Application. . (B)

Chapter 3

The table of sections for chapter 3 of title 9, United States Code, is amended by striking the item relating to section 307 and inserting the following: 307. Application. . (3)

Table of chapters

The table of chapters for title 9, United States Code, is amended by adding at the end the following: 4. Arbitration of employment, consumer, and civil rights disputes401 .

4.

Effective date

This Act, and the amendments made by this Act, shall take effect on the date of enactment of this Act and shall apply with respect to any dispute or claim that arises on or after such date.