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S. 1491: Restoring Justice for Workers Act


The text of the bill below is as of May 15, 2019 (Introduced).


II

116th CONGRESS

1st Session

S. 1491

IN THE SENATE OF THE UNITED STATES

May 15, 2019

(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.

1.

Short title

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

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.

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.

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.

5.

Arbitration of work disputes

(a)

In general

Title 9 of the United States Code is amended by adding at the end the following:

4

Arbitration of Work Disputes

Sec.

401. Definitions.

402. Validity and enforceability.

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.

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 disputes401.

.

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.