[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1491 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  1st Session
                                S. 1491

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 15, 2019

Mrs. Murray (for herself, Ms. Baldwin, Mr. Blumenthal, Mr. Booker, Mr. 
 Brown, Mr. Casey, Ms. Cortez Masto, Mr. Durbin, Mrs. Gillibrand, Ms. 
Harris, Mr. King, Ms. Klobuchar, Mr. Markey, Mr. Merkley, Mr. Reed, Mr. 
 Sanders, Mrs. Shaheen, and Ms. Warren) 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 work 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 workers are currently forced to accept, as 
        a condition of employment or work, contractual provisions that 
        block their access to the courts or prohibit them from joining 
        together with other workers to seek joint, class, or collective 
        relief for violations of their rights. This has led to 
        widespread nonenforcement of workers' rights and has permitted 
        significant violations of those rights to continue unabated.
            (2) Most workers have little or no meaningful choice 
        regarding whether to accept these provisions. Often, workers 
        are not even aware that they have given up the right to seek 
        recourse in court or have waived their right to join other 
        workers 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 clarify the 
        ability of commercial entities of generally similar 
        sophistication and bargaining power to voluntarily agree to use 
        arbitration to resolve disputes between them. Despite this 
        congressional intent, the Supreme Court of the United States 
        has interpreted the Federal Arbitration Act so that it now 
        extends to work 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 act collectively with regard to employment 
        actions.
            (5) Forced individual dispute resolution undermines 
        workers' rights and exacerbates the inequality of bargaining 
        power between workers and employers because joining a joint, 
        class, or collective action is often the only way workers can 
        afford to seek relief for violations of their rights.
            (6) Workers 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 workers to individually or 
        concertedly seek relief for violations of their labor rights 
        through appropriate forums 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 work disputes;
            (2) prohibit retaliation against workers for refusing to 
        arbitrate work disputes;
            (3) provide protections to ensure that postdispute 
        arbitration agreements are truly voluntary and with the 
        informed consent of workers; and
            (4) amend the National Labor Relations Act to prohibit 
        agreements and practices that interfere with employees' right 
        to engage in concerted activity regarding work disputes.

SEC. 4. PROTECTION OF CONCERTED ACTIVITY.

    (a) Agreements.--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 claim arising from or relating to the 
        employment of such employee in any forum that, but for such 
        agreement, is of competent jurisdiction;
            ``(B) to coerce such an employee into undertaking or 
        promising not to pursue, bring, join, litigate, or support any 
        kind of joint, class, or collective claim arising from or 
        relating to the employment of such employee; or
            ``(C) 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 claim 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.''.
    (b) Conforming Amendment.--Section 10(b) of the National Labor 
Relations Act (29 U.S.C. 160(b)) is amended by striking ``discharge'' 
and inserting ``discharge, or unless the person aggrieved thereby is an 
employee alleging a violation of section 8(a)(6) whose charge involves 
a postdispute arbitration agreement that meets the requirements under 
section 402(a)(2) of title 9, United States Code, or an agreement 
described in section 402(a)(4) of such title that meets the 
requirements under subparagraphs (A) through (D) of section 402(a)(2) 
of such title, in which event the six-month period shall be computed 
from the day the waiting period described in subparagraph (C) of such 
section ends''.

SEC. 5. ARBITRATION OF WORK DISPUTES.

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

               ``CHAPTER 4--ARBITRATION OF WORK 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 `covered entity' means--
                    ``(A) an employer; or
                    ``(B) an individual or entity that is not acting as 
                an employer and engages the services of a worker;
            ``(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;
            ``(4) the term `postdispute arbitration agreement' means 
        any agreement to arbitrate a dispute that arose before the time 
        of the making of the agreement;
            ``(5) the term `worker' means--
                    ``(A) an employee; or
                    ``(B) an individual who is engaged by a covered 
                entity to perform services or work as an independent 
                contractor (regardless of the label or classification 
                assigned or used by the covered entity); and
            ``(6) the term `work dispute'--
                    ``(A) means a dispute between one or more workers 
                (or their authorized representatives) and a covered 
                entity arising out of or related to the work 
                relationship or prospective work relationship between 
                the workers and the covered entity; and
                    ``(B) includes, but is not limited to--
                            ``(i) a dispute regarding the terms of, 
                        payment for, advertising of, recruitment of, 
                        referring of, arranging for, or discipline or 
                        discharge in connection with such work;
                            ``(ii) a dispute arising under any law 
                        referred to or described in section 62(e) of 
                        the Internal Revenue Code of 1986, including 
                        any part of such a law not explicitly 
                        referenced in such section that relates to 
                        protecting individuals on a basis that is 
                        protected under a law referred to or described 
                        in such section; and
                            ``(iii) a dispute in which an individual or 
                        individuals seek certification--
                                    ``(I) as a class under rule 23 of 
                                the Federal Rules of Civil Procedure;
                                    ``(II) as a collective action under 
                                section 16(b) of the Fair Labor 
                                Standards Act of 1938 (29 U.S.C. 
                                216(b)); or
                                    ``(III) under a comparable rule or 
                                provision of State law.
``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 a work dispute;
            ``(2) no postdispute arbitration agreement that requires 
        arbitration of a work dispute shall be valid or enforceable 
        unless--
                    ``(A) the agreement was not required by the covered 
                entity, obtained by coercion or threat of adverse 
                action, or made a condition of employment, work, or any 
                employment-related or work-related privilege or 
                benefit;
                    ``(B) each worker entering into the agreement was 
                informed in writing using sufficiently plain language 
                likely to be understood by the average worker of--
                            ``(i) the right of the worker 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 worker entering into the agreement 
                entered the agreement after a waiting period of not 
                fewer than 45 days, beginning on the date on which the 
                worker was provided both the final text of the 
                agreement and the disclosures required under 
                subparagraph (B); and
                    ``(D) each worker entering into the agreement 
                affirmatively consented to the agreement in writing;
            ``(3) no agreement shall be valid or enforceable, whereby 
        prior to a work dispute to which the agreement applies, a 
        worker undertakes or promises not to pursue, bring, join, 
        litigate, or support any kind of joint, class, or collective 
        claim arising from or relating to a work dispute in any forum 
        that, but for such agreement, is of competent jurisdiction;
            ``(4) no agreement shall be valid or enforceable, whereby 
        after a work dispute to which the agreement applies arises, a 
        worker undertakes or promises not to pursue, bring, join, 
        litigate, or support any kind of joint, class, or collective 
        claim arising from or relating to a work dispute in any forum 
        that, but for such agreement, is of competent jurisdiction, 
        unless the agreement meets the requirements of paragraph (2) of 
        this subsection; and
            ``(5) no covered entity may retaliate or threaten to 
        retaliate against a worker for refusing to enter into an 
        agreement that provides for arbitration of a work 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 work dispute shall be 
tolled.
    ``(c) Civil Action.--Any person who is injured by reason of a 
violation of subsection (a)(5) may bring a civil action in the 
appropriate district court of the United States against the covered 
entity 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 covered entities 
        and workers engaged in activity affecting commerce to the 
        fullest extent permitted by the Constitution of the United 
        States, including the work of persons engaged in domestic 
        service in households, as described in section 2(a) of the Fair 
        Labor Standards Act of 1938 (29 U.S.C. 202(a)). 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 purports to 
        delegate such determinations 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 a covered entity and a labor organization, except that 
        no such arbitration provision shall have the effect of waiving 
        the right of a worker 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 work 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 or accrues on or after such date, 
including any dispute or claim to which an agreement predating such 
date applies.
                                 <all>