[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3615 Introduced in Senate (IS)]

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115th CONGRESS
  2d Session
                                S. 3615

 To prohibit forced arbitration in employment disputes, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 14, 2018

Mrs. Murray (for herself, Mr. Blumenthal, Ms. Baldwin, Mr. Booker, Mr. 
 Brown, Ms. Cortez Masto, Mrs. Gillibrand, Ms. Harris, Ms. Hassan, Ms. 
Hirono, Mr. Markey, Mr. Merkley, Mr. Reed, Mr. Sanders, Mr. Schatz, Ms. 
   Warren, Mr. Whitehouse, Mr. Wyden, and Ms. Smith) introduced the 
 following bill; which was read twice and referred to the Committee on 
                 Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
 To prohibit forced arbitration in employment disputes, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Restoring Justice for Workers Act''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Millions of employees are currently forced to accept, 
        as a condition of employment, contractual provisions that block 
        their access to the courts or prohibit them from joining 
        together with other employees to seek joint, class, or 
        collective relief for violations of their rights. This has led 
        to widespread nonenforcement of employees' rights and has 
        permitted significant violations of those rights to continue 
        unabated.
            (2) Most employees have little or no meaningful choice 
        regarding whether to accept these provisions. Often, employees 
        are not even aware that they have given up the right to seek 
        recourse in court or have waived their right to join other 
        employees in joint, class, or collective actions.
            (3) The Federal Arbitration Act (now enacted as chapter 1 
        of title 9, United States Code) was intended to apply to 
        disputes between commercial entities of generally similar 
        sophistication and bargaining power. Despite this congressional 
        intent, the Supreme Court of the United States has interpreted 
        the Federal Arbitration Act so that it now extends to 
        employment disputes.
            (4) The National Labor Relations Act (29 U.S.C. 151 et 
        seq.) protects employees' right to engage in concerted 
        activities for the purpose of mutual aid or protection. This 
        was intended and long understood to encompass employees' right 
        to collectively seek relief for violations of their workplace 
        rights. However, contrary to the plain text of the law and 
        congressional intent, the Supreme Court of the United States, 
        in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), decided 
        that employees may be forced, as a condition of employment, to 
        waive their right to collectively litigate employment actions.
            (5) Forced individual dispute resolution undermines 
        employees' rights and exacerbates the inequality of bargaining 
        power between employees and employers because joining a joint, 
        class, or collective action is often the only way employees can 
        afford to seek relief for violations of their rights.
            (6) Employees who are forced to submit to individual 
        dispute resolution often seek no redress at all due to well-
        founded fear of retaliation.
            (7) Protecting the rights of employees to individually or 
        concertedly seek relief for violations of their labor rights 
        through the justice system protects the public interest and 
        safeguards commerce from injury.

SEC. 3. PURPOSES.

    The purposes of this Act are to--
            (1) prohibit predispute arbitration agreements that require 
        arbitration of employment disputes;
            (2) prohibit retaliation against employees for refusing to 
        arbitrate employment disputes;
            (3) provide protections to ensure that postdispute 
        arbitration agreements are truly voluntary and with the 
        informed consent of employees; and
            (4) amend the National Labor Relations Act to prohibit 
        agreements and practices that interfere with employees' right 
        to collectively litigate employment disputes.

SEC. 4. PROTECTION OF CONCERTED ACTIVITY.

    Section 8(a) of the National Labor Relations Act (29 U.S.C. 158(a)) 
is amended--
            (1) in paragraph (5), by striking the period at the end and 
        inserting ``; and''; and
            (2) by adding at the end the following:
            ``(6)(A) to enter into or attempt to enforce any agreement, 
        express or implied, whereby prior to a dispute to which the 
        agreement applies, an employee undertakes or promises not to 
        pursue, bring, join, litigate, or support any kind of joint, 
        class, or collective legal action arising from or relating to 
        the employment of such employee in any forum that, but for such 
        agreement, is of competent jurisdiction; or
            ``(B) to retaliate or threaten to retaliate against an 
        employee for refusing to undertake or promise not to pursue, 
        bring, join, litigate, or support any kind of joint, class, or 
        collective legal action arising from or relating to the 
        employment of such employee:
         Provided, That any agreement that violates this paragraph or 
        results from a violation of this paragraph shall be to such 
        extent unenforceable and void: Provided further, That this 
        paragraph shall not apply to any agreement embodied in or 
        expressly permitted by a contract between an employer and a 
        labor organization.''.

SEC. 5. ARBITRATION OF EMPLOYMENT DISPUTES.

    (a) In General.--Title 9 of the United States Code is amended by 
adding at the end the following:

            ``CHAPTER 4--ARBITRATION OF EMPLOYMENT DISPUTES

``Sec.
``401. Definitions.
``402. Validity and enforceability.
``Sec. 401. Definitions
    ``In this chapter--
            ``(1) the terms `commerce', `employee', and `employer' have 
        the meanings given the terms in section 3 of the Fair Labor 
        Standards Act of 1938 (29 U.S.C. 203);
            ``(2) the term `employment dispute' means a dispute between 
        an employer and an employee arising from or relating to the 
        employment of the employee, and includes disputes that arise 
        under common law or from the alleged violation of the 
        Constitution of the United States, the constitution of a State, 
        or a Federal, State, territorial, county, or municipal statute;
            ``(3) 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; and
            ``(4) the term `postdispute arbitration agreement' means 
        any agreement to arbitrate a dispute that arose before the time 
        of the making of the agreement.
``Sec. 402. Validity and enforceability
    ``(a) In General.--Notwithstanding any other chapter of this 
title--
            ``(1) no predispute arbitration agreement shall be valid or 
        enforceable if it requires arbitration of an employment 
        dispute;
            ``(2) no postdispute arbitration agreement that requires 
        arbitration of an employment dispute shall be valid or 
        enforceable unless--
                    ``(A) the agreement was not required by the 
                employer, obtained by coercion or threat of adverse 
                action, or made a condition of employment or any 
                employment-related privilege or benefit;
                    ``(B) each employee entering into the agreement was 
                informed in writing using sufficiently plain language 
                likely to be understood by the average employee of--
                            ``(i) the right of the employee under 
                        paragraph (3) to refuse to enter the agreement 
                        without retaliation; and
                            ``(ii) the protections under section 
                        8(a)(6) of the National Labor Relations Act (29 
                        U.S.C. 158(a)(6));
                    ``(C) each employee entering into the agreement 
                entered the agreement after a waiting period of not 
                fewer than 45 days, beginning on the date on which the 
                employee was provided both the final text of the 
                agreement and the disclosures required under 
                subparagraph (B); and
                    ``(D) each employee entering into the agreement 
                affirmatively consented to the agreement in writing; 
                and
            ``(3) no employer may retaliate or threaten to retaliate 
        against an employee for refusing to enter into an agreement 
        that provides for arbitration of an employment dispute.
    ``(b) Statute of Limitations.--During the waiting period described 
in subsection (a)(2)(C), the statute of limitations for any claims that 
arise from or form the basis for the applicable employment dispute 
shall be tolled.
    ``(c) Civil Action.--Any person who is injured by reason of a 
violation of subsection (a)(3) may bring a civil action in the 
appropriate district court of the United States against the employer 
within 2 years of the violation, or within 3 years if such violation is 
willful. Relief granted in such an action shall include a reasonable 
attorney's fee, other reasonable costs associated with maintaining the 
action, and any appropriate relief authorized by section 706(g) of the 
Civil Rights Act of 1964 (42 U.S.C. 2000e-5(g)) or by section 1977A(b) 
of the Revised Statutes (42 U.S.C. 1981a(b)).
    ``(d) Applicability.--
            ``(1) In general.--This chapter applies to employers and 
        employees engaged in activity affecting commerce to the fullest 
        extent permitted by the United States Constitution. 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, 
        regardless of whether any contractual provision delegates such 
        matters to the arbitrator and 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, 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, the constitution of a State, 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 disputes.....................    401.''.

SEC. 6. 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, including any 
dispute or claim to which an agreement predating such date applies.
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