Restoring Justice for Workers Act

II 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. GILLI- BRAND, 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Restoring Justice for 4 Workers Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 (1) Millions of workers are currently forced to 8 accept, as a condition of employment or work, con- 9 VerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491 kjohnson on DSK79L0C42 with BILLS 2 •S 1491 IS tractual provisions that block their access to the 1 courts or prohibit them from joining together with 2 other workers to seek joint, class, or collective relief 3 for violations of their rights. This has led to wide- 4 spread nonenforcement of workers’ rights and has 5 permitted significant violations of those rights to 6 continue unabated. 7 (2) Most workers have little or no meaningful 8 choice regarding whether to accept these provisions. 9 Often, workers are not even aware that they have 10 given up the right to seek recourse in court or have 11 waived their right to join other workers in joint, 12 class, or collective actions. 13 (3) The Federal Arbitration Act (now enacted 14 as chapter 1 of title 9, United States Code) was in- 15 tended to clarify the ability of commercial entities of 16 generally similar sophistication and bargaining 17 power to voluntarily agree to use arbitration to re- 18 solve disputes between them. Despite this congres- 19 sional intent, the Supreme Court of the United 20 States has interpreted the Federal Arbitration Act 21 so that it now extends to work disputes. 22 (4) The National Labor Relations Act (29 23 U.S.C. 151 et seq.) protects employees’ right to en- 24 gage in concerted activities for the purpose of mu- 25 VerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491 kjohnson on DSK79L0C42 with BILLS 3 •S 1491 IS tual aid or protection. This was intended and long 1 understood to encompass employees’ right to collec- 2 tively seek relief for violations of their workplace 3 rights. However, contrary to the plain text of the 4 law and congressional intent, the Supreme Court of 5 the United States, in Epic Systems Corp. v. Lewis, 6 138 S. Ct. 1612 (2018), decided that employees may 7 be forced, as a condition of employment, to waive 8 their right to act collectively with regard to employ- 9 ment actions. 10 (5) Forced individual dispute resolution under- 11 mines workers’ rights and exacerbates the inequality 12 of bargaining power between workers and employers 13 because joining a joint, class, or collective action is 14 often the only way workers can afford to seek relief 15 for violations of their rights. 16 (6) Workers who are forced to submit to indi- 17 vidual dispute resolution often seek no redress at all 18 due to well-founded fear of retaliation. 19 (7) Protecting the rights of workers to individ- 20 ually or concertedly seek relief for violations of their 21 labor rights through appropriate forums protects the 22 public interest and safeguards commerce from in- 23 jury. 24 VerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491 kjohnson on DSK79L0C42 with BILLS 4 •S 1491 IS SEC. 3. PURPOSES. 1 The purposes of this Act are to— 2 (1) prohibit predispute arbitration agreements 3 that require arbitration of work disputes; 4 (2) prohibit retaliation against workers for re- 5 fusing to arbitrate work disputes; 6 (3) provide protections to ensure that postdis- 7 pute arbitration agreements are truly voluntary and 8 with the informed consent of workers; and 9 (4) amend the National Labor Relations Act to 10 prohibit agreements and practices that interfere with 11 employees’ right to engage in concerted activity re- 12 garding work disputes. 13 SEC. 4. PROTECTION OF CONCERTED ACTIVITY. 14 (a) AGREEMENTS.—Section 8(a) of the National 15 Labor Relations Act (29 U.S.C. 158(a)) is amended— 16 (1) in paragraph (5), by striking the period at 17 the end and inserting ‘‘; and’’; and 18 (2) by adding at the end the following: 19 ‘‘(6)(A) to enter into or attempt to enforce any 20 agreement, express or implied, whereby prior to a 21 dispute to which the agreement applies, an employee 22 undertakes or promises not to pursue, bring, join, 23 litigate, or support any kind of joint, class, or collec- 24 tive claim arising from or relating to the employ- 25 VerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491 kjohnson on DSK79L0C42 with BILLS 5 •S 1491 IS ment of such employee in any forum that, but for 1 such agreement, is of competent jurisdiction; 2 ‘‘(B) to coerce such an employee into under- 3 taking or promising not to pursue, bring, join, liti- 4 gate, or support any kind of joint, class, or collective 5 claim arising from or relating to the employment of 6 such employee; or 7 ‘‘(C) to retaliate or threaten to retaliate against 8 an employee for refusing to undertake or promise 9 not to pursue, bring, join, litigate, or support any 10 kind of joint, class, or collective claim arising from 11 or relating to the employment of such employee: 12 Provided, That any agreement that violates this 13 paragraph or results from a violation of this para- 14 graph shall be to such extent unenforceable and 15 void: Provided further, That this paragraph shall not 16 apply to any agreement embodied in or expressly 17 permitted by a contract between an employer and a 18 labor organization.’’. 19 (b) CONFORMING AMENDMENT.—Section 10(b) of 20 the National Labor Relations Act (29 U.S.C. 160(b)) is 21 amended by striking ‘‘discharge’’ and inserting ‘‘dis- 22 charge, or unless the person aggrieved thereby is an em- 23 ployee alleging a violation of section 8(a)(6) whose charge 24 involves a postdispute arbitration agreement that meets 25 VerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491 kjohnson on DSK79L0C42 with BILLS 6 •S 1491 IS the requirements under section 402(a)(2) of title 9, United 1 States Code, or an agreement described in section 2 402(a)(4) of such title that meets the requirements under 3 subparagraphs (A) through (D) of section 402(a)(2) of 4 such title, in which event the six-month period shall be 5 computed from the day the waiting period described in 6 subparagraph (C) of such section ends’’. 7 SEC. 5. ARBITRATION OF WORK DISPUTES. 8 (a) IN GENERAL.—Title 9 of the United States Code 9 is amended by adding at the end the following: 10 ‘‘CHAPTER 4—ARBITRATION OF WORK 11 DISPUTES 12 ‘‘Sec. ‘‘401. Definitions. ‘‘402. Validity and enforceability. ‘‘§ 401. Definitions 13 ‘‘In this chapter— 14 ‘‘(1) the terms ‘commerce’, ‘employee’, and ‘em- 15 ployer’ have the meanings given the terms in section 16 3 of the Fair Labor Standards Act of 1938 (29 17 U.S.C. 203); 18 ‘‘(2) the term ‘covered entity’ means— 19 ‘‘(A) an employer; or 20 ‘‘(B) an individual or entity that is not 21 acting as an employer and engages the services 22 of a worker; 23 VerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491 kjohnson on DSK79L0C42 with BILLS 7 •S 1491 IS ‘‘(3) the term ‘predispute arbitration agree- 1 ment’ means any agreement to arbitrate a dispute 2 that had not yet arisen at the time of the making 3 of the agreement; 4 ‘‘(4) the term ‘postdispute arbitration agree- 5 ment’ means any agreement to arbitrate a dispute 6 that arose before the time of the making of the 7 agreement; 8 ‘‘(5) the term ‘worker’ means— 9 ‘‘(A) an employee; or 10 ‘‘(B) an individual who is engaged by a 11 covered entity to perform services or work as an 12 independent contractor (regardless of the label 13 or classification assigned or used by the covered 14 entity); and 15 ‘‘(6) the term ‘work dispute’— 16 ‘‘(A) means a dispute between one or more 17 workers (or their authorized representatives) 18 and a covered entity arising out of or related to 19 the work relationship or prospective work rela- 20 tionship between the workers and the covered 21 entity; and 22 ‘‘(B) includes, but is not limited to— 23 ‘‘(i) a dispute regarding the terms of, 24 payment for, advertising of, recruitment of, 25 VerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491 kjohnson on DSK79L0C42 with BILLS 8 •S 1491 IS referring of, arranging for, or discipline or 1 discharge in connection with such work; 2 ‘‘(ii) a dispute arising under any law 3 referred to or described in section 62(e) of 4 the Internal Revenue Code of 1986, includ- 5 ing any part of such a law not explicitly 6 referenced in such section that relates to 7 protecting individuals on a basis that is 8 protected under a law referred to or de- 9 scribed in such section; and 10 ‘‘(iii) a dispute in which an individual 11 or individuals seek certification— 12 ‘‘(I) as a class under rule 23 of 13 the Federal Rules of Civil Procedure; 14 ‘‘(II) as a collective action under 15 section 16(b) of the Fair Labor 16 Standards Act of 1938 (29 U.S.C. 17 216(b)); or 18 ‘‘(III) under a comparable rule or 19 provision of State law. 20 ‘‘§ 402. Validity and enforceability 21 ‘‘(a) IN GENERAL.—Notwithstanding any other chap- 22 ter of this title— 23 VerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491 kjohnson on DSK79L0C42 with BILLS 9 •S 1491 IS ‘‘(1) no predispute arbitration agreement shall 1 be valid or enforceable if it requires arbitration of a 2 work dispute; 3 ‘‘(2) no postdispute arbitration agreement that 4 requires arbitration of a work dispute shall be valid 5 or enforceable unless— 6 ‘‘(A) the agreement was not required by 7 the covered entity, obtained by coercion or 8 threat of adverse action, or made a condition of 9 employment, work, or any employment-related 10 or work-related privilege or benefit; 11 ‘‘(B) each worker entering into the agree- 12 ment was informed in writing using sufficiently 13 plain language likely to be understood by the 14 average worker of— 15 ‘‘(i) the right of the worker under 16 paragraph (3) to refuse to enter the agree- 17 ment without retaliation; and 18 ‘‘(ii) the protections under section 19 8(a)(6) of the National Labor Relations 20 Act (29 U.S.C. 158(a)(6)); 21 ‘‘(C) each worker entering into the agree- 22 ment entered the agreement after a waiting pe- 23 riod of not fewer than 45 days, beginning on 24 the date on which the worker was provided both 25 VerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491 kjohnson on DSK79L0C42 with BILLS 10 •S 1491 IS the final text of the agreement and the disclo- 1 sures required under subparagraph (B); and 2 ‘‘(D) each worker entering into the agree- 3 ment affirmatively consented to the agreement 4 in writing; 5 ‘‘(3) no agreement shall be valid or enforceable, 6 whereby prior to a work dispute to which the agree- 7 ment applies, a worker undertakes or promises not 8 to pursue, bring, join, litigate, or support any kind 9 of joint, class, or collective claim arising from or re- 10 lating to a work dispute in any forum that, but for 11 such agreement, is of competent jurisdiction; 12 ‘‘(4) no agreement shall be valid or enforceable, 13 whereby after a work dispute to which the agree- 14 ment applies arises, a worker undertakes or prom- 15 ises not to pursue, bring, join, litigate, or support 16 any kind of joint, class, or collective claim arising 17 from or relating to a work dispute in any forum 18 that, but for such agreement, is of competent juris- 19 diction, unless the agreement meets the require- 20 ments of paragraph (2) of this subsection; and 21 ‘‘(5) no covered entity may retaliate or threaten 22 to retaliate against a worker for refusing to enter 23 into an agreement that provides for arbitration of a 24 work dispute. 25 VerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491 kjohnson on DSK79L0C42 with BILLS 11 •S 1491 IS ‘‘(b) STATUTE OF LIMITATIONS.—During the waiting 1 period described in subsection (a)(2)(C), the statute of 2 limitations for any claims that arise from or form the basis 3 for the applicable work dispute shall be tolled. 4 ‘‘(c) CIVIL ACTION.—Any person who is injured by 5 reason of a violation of subsection (a)(5) may bring a civil 6 action in the appropriate district court of the United 7 States against the covered entity within 2 years of the vio- 8 lation, or within 3 years if such violation is willful. Relief 9 granted in such an action shall include a reasonable attor- 10 ney’s fee, other reasonable costs associated with maintain- 11 ing the action, and any appropriate relief authorized by 12 section 706(g) of the Civil Rights Act of 1964 (42 U.S.C. 13 2000e–5(g)) or by section 1977A(b) of the Revised Stat- 14 utes (42 U.S.C. 1981a(b)). 15 ‘‘(d) APPLICABILITY.— 16 ‘‘(1) IN GENERAL.—This chapter applies to cov- 17 ered entities and workers engaged in activity affect- 18 ing commerce to the fullest extent permitted by the 19 Constitution of the United States, including the 20 work of persons engaged in domestic service in 21 households, as described in section 2(a) of the Fair 22 Labor Standards Act of 1938 (29 U.S.C. 202(a)). 23 An issue as to whether this chapter applies to an ar- 24 bitration agreement shall be determined under Fed- 25 VerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491 kjohnson on DSK79L0C42 with BILLS 12 •S 1491 IS eral law. The applicability of this chapter to an 1 agreement to arbitrate and the validity and enforce- 2 ability of an agreement to which this chapter applies 3 shall be determined by a court, rather than an arbi- 4 trator, regardless of whether any contractual provi- 5 sion purports to delegate such determinations to the 6 arbitrator and irrespective of whether the party re- 7 sisting arbitration challenges the arbitra [Text truncated for display. Full text available on Congress.gov.]