[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4502 Introduced in Senate (IS)]

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118th CONGRESS
  2d Session
                                S. 4502

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 11, 2024

Mrs. Murray (for herself, Mr. Blumenthal, Mr. Sanders, Mr. Durbin, Mr. 
Merkley, Ms. Warren, Mr. Padilla, Ms. Klobuchar, Mr. Booker, Mr. Casey, 
 Ms. Hirono, Ms. Cortez Masto, Ms. Baldwin, Mr. Brown, Mr. Murphy, Mr. 
  Markey, Mr. Reed, and Mrs. Shaheen) 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) Chapter 1 of title 9, United States Code (commonly 
        known as the ``Federal Arbitration Act''), 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 that law 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 502(a)(2) of title 9, United States Code, or an agreement 
described in section 502(a)(4) of such title that meets the 
requirements under subparagraphs (A) through (D) of section 502(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 5--ARBITRATION OF WORK DISPUTES

``Sec.
``501. Definitions.
``502. Validity and enforceability.
``Sec. 501. Definitions
    ``In this chapter:
            ``(1) Commerce; employee; employer.--The terms `commerce', 
        `employee', and `employer' have the meanings given such terms 
        in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 
        203).
            ``(2) Covered entity.--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) Predispute arbitration agreement.--The term 
        `predispute arbitration agreement' has the meaning given that 
        term in section 401.
            ``(4) Predispute joint-action waiver of a work dispute.--
        The term `predispute joint-action waiver of a work dispute' 
        means an agreement under which 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 that has not yet arisen at the time of the making 
        of the agreement in any forum that, but for such agreement, is 
        of competent jurisdiction.
            ``(5) Postdispute arbitration agreement.--The term 
        `postdispute arbitration agreement' means any agreement to 
        arbitrate a dispute that arose before the time of the making of 
        the agreement.
            ``(6) Postdispute joint-action waiver of a work dispute.--
        The term `postdispute joint-action waiver of a work dispute' 
        means an agreement under which 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 that arose before the time of the making of the 
        agreement in any forum that, but for such agreement, is of 
        competent jurisdiction.
            ``(7) Work dispute.--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--
                            ``(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 
                        relationship;
                            ``(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.
            ``(8) Worker.--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).
``Sec. 502. 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 (5) 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 predispute joint-action waiver of a work dispute 
        shall be valid or enforceable;
            ``(4) no postdispute joint-action waiver of a work dispute 
        shall be valid or enforceable, unless the agreement to waive 
        meets the requirements of subparagraphs (A) through (D) of 
        paragraph (2); 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)).
            ``(2) Arbitration agreements.--
                    ``(A) Application determined under federal law.--An 
                issue as to whether this chapter applies to an 
                arbitration agreement shall be determined under Federal 
                law.
                    ``(B) Application determined by court.--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.
                    ``(C) 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 5'' before the 
                period at the end;
                    (C) in section 208, in the second sentence, by 
                inserting ``or 5'' before the period at the end; and
                    (D) in section 307, in the second sentence, by 
                inserting ``or 5'' before the period at the end.
            (2) Table of chapters.--The table of chapters for title 9, 
        United States Code, is amended by adding at the end the 
        following:

``5. Arbitration of work disputes...........................    501.''.

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.
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