Unenforceable arbitration clauses, class action waivers, representation waivers, and discretionary clauses

(a)

In general

Section 502 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1132) is amended by adding at the end the following:

(n) (1)In any civil action brought by, or on behalf of, a participant or beneficiary pursuant to this section or with respect to a common law claim involving a plan or plan benefit, notwithstanding any other provision of law— (A)no predispute arbitration provision shall be valid or enforceable if it requires arbitration of a matter related to a claim brought under this section; (B)no postdispute arbitration provision shall be valid or enforceable unless— (i)the provision was not required by any person, obtained by coercion or threat of adverse action, or made a condition of participating in a plan, receiving benefits under a plan, or receiving any other employment, work, or any employment-related or work-related privilege or benefit; (ii)each participant or beneficiary agreeing to the provision was informed, through a paper notice, in a manner reasonably calculated to be understood by the average plan participant, of the right of the participant or beneficiary under subparagraph (C) to refuse to agree to the provision without retaliation or threat of retaliation; (iii)each participant or beneficiary agreeing to the provision so agreed after a waiting period of not fewer than 45 days, beginning on the date on which the participant or beneficiary was provided both the final text of the provision and the disclosures required under clause (ii); and (iv)each participant or beneficiary agreeing to the provision affirmatively consented to the provision in writing; (C)no covered provision shall be valid or enforceable, if prior to a dispute to which the covered provision applies, a participant or beneficiary undertakes or promises not to pursue, bring, join, litigate, or support any kind of individual, joint, class, representative, or collective claim available under this section in any forum that, but for such covered provision, is of competent jurisdiction; (D)no covered provision shall be valid or enforceable, if after a dispute to which the covered provision applies arises, a participant or beneficiary undertakes or promises not to pursue, bring, join, litigate, or support any kind of individual, joint, class, representative, or collective claim under this section in any forum that, but for such covered provision, is of competent jurisdiction, unless the covered provision meets the requirements of subparagraph (B); and (E)no covered provision related to a plan other than a multiemployer plan shall be valid or enforceable that purports to confer discretionary authority to any person with respect to benefit determinations or interpretation of plan language, or to provide a standard of review of such determinations or interpretation by a reviewing court in an action brought under this section that would require anything other than de novo review of such determinations or interpretation. (2)In this subsection— (A)the term covered provision means any document, instrument, or agreement related to a plan or plan benefit, regardless of whether such provision appears in a plan document or in a separate agreement; (B)the term predispute arbitration provision means a covered provision that requires a participant or beneficiary to arbitrate a dispute related to the plan or an amendment to the plan that had not yet arisen at the time such provision took effect; (C)the term postdispute arbitration provision means a covered provision that requires a participant or beneficiary to arbitrate a dispute related to the plan or an amendment to the plan that arose before the time such provision took effect; and (D)the term retaliation means any action in violation of section 510. (3) (A)Any dispute as to whether a covered provision that requires a participant or beneficiary to arbitrate a dispute related to a plan is valid and enforceable 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. (B)For purposes of this subsection, a dispute shall be considered to arise only when a plaintiff has actual knowledge (within the meaning of such term in section 413) of a breach or violation giving rise to a claim under this section.

(b)

Regulations

The Secretary of Labor may promulgate such regulations as may be necessary to carry out the amendment made by subsection (a), including providing for the form and content of notices required pursuant to such amendment.

Prohibition on mandatory arbitration clauses, class action waivers, representation waivers, and discretionary clauses

Section 402 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1102) is amended by adding at the end the following:

(d) (1)No covered person may— (A)require participants or beneficiaries to agree to a predispute arbitration provision as a condition for participation in, or receipt of benefits under, a plan; (B)agree to a postdispute arbitration provision with a participant or beneficiary with respect to a plan or plan benefit unless the conditions of clauses (i) through (iv) of section 502(n)(1)(B) are satisfied with respect to such provision; or (C)agree to any other covered provision with respect to a plan or plan benefit under any circumstances under which such provision would not be valid and enforceable under subparagraphs (C) through (E) of section 502(n)(1). (2)In this subsection— (A)the term covered person means— (i)a plan; (ii)a plan sponsor; (iii)an employer; or (iv)a person engaged by a plan for purposes of administering or operating the plan; and (B)the terms covered provision, predispute arbitration provision and postdispute arbitration provision have the meanings given such terms in section 502(n)(2).