[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4219 Introduced in Senate (IS)]
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117th CONGRESS
2d Session
S. 4219
To amend the Employee Retirement Income Security Act of 1974 to provide
that any mandatory predispute or coerced postdispute arbitration
clause, class action waiver, representation waiver, or discretionary
clause with respect to a plan is unenforceable, to prohibit any such
clause or waiver from being included in a plan document or other
agreement with plan participants, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 12, 2022
Ms. Smith introduced the following bill; which was read twice and
referred to the Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To amend the Employee Retirement Income Security Act of 1974 to provide
that any mandatory predispute or coerced postdispute arbitration
clause, class action waiver, representation waiver, or discretionary
clause with respect to a plan is unenforceable, to prohibit any such
clause or waiver from being included in a plan document or other
agreement with plan participants, 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 ``Employee and Retiree Access to
Justice Act of 2022''.
SEC. 2. 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.
SEC. 3. 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) 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).''.
SEC. 4. EFFECTIVE DATE.
(a) In General.--The amendments made by sections 2 and 3 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 a provision predating
such date applies, regardless of whether plan documents have been
updated in accordance with such amendments.
(b) Enforcement With Respect to Plan Document Updates.--
Notwithstanding subsection (a), no person shall be deemed to be in
violation of such amendments on account of plan documents that have not
been updated in accordance with such amendments until after the
beginning of the first plan year that begins on or after the date that
is 1 year after the date of enactment of this Act, provided that such
person acts in accordance with such amendments during the period in
which the plan documents have not been updated.
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