Restoring Justice for Workers Act

I 116TH CONGRESS 1ST SESSION H. R. 2749 To prohibit forced arbitration in work disputes, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MAY 15, 2019 Mr. NADLER (for himself, Mr. SCOTT of Virginia, Mr. CICILLINE, Ms. BONAMICI, Mrs. BUSTOS, Mr. CISNEROS, Mr. COHEN, Mr. COOPER, Mr. CUMMINGS, Mr. DANNY K. DAVIS of Illinois, Ms. DELAURO, Mr. DESAULNIER, Mrs. DINGELL, Mr. ESPAILLAT, Mr. EVANS, Mr. GARAMENDI, Mr. GOLDEN, Mr. HASTINGS, Ms. JACKSON LEE, Ms. JAYAPAL, Mr. KENNEDY, Mr. KILDEE, Mr. LANGEVIN, Mrs. LAWRENCE, Mr. LEVIN of Michigan, Mr. LOWENTHAL, Mrs. MCBATH, Ms. MCCOL- LUM, Mr. MCEACHIN, Mr. MCGOVERN, Mr. MEEKS, Ms. MUCARSEL- POWELL, Ms. NORTON, Ms. OCASIO-CORTEZ, Ms. PORTER, Mr. RASKIN, Mr. RUSH, Mr. RYAN, Ms. SCANLON, Ms. SCHAKOWSKY, Mr. SMITH of Washington, Mr. SWALWELL of California, Mr. TAKANO, Mr. TONKO, Mr. VELA, Ms. VELA´ZQUEZ, Ms. WASSERMAN SCHULTZ, and Ms. CASTOR of Florida) introduced the following bill; which was referred to the Com- mittee on the Judiciary, and in addition to the Committee on Education and Labor, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the juris- diction of the committee concerned 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 VerDate Sep 11 2014 21:03 May 29, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2749.IH H2749 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 2749 IH SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Restoring Justice for 2 Workers Act’’. 3 SEC. 2. PURPOSES. 4 The purposes of this Act are to— 5 (1) prohibit predispute arbitration agreements 6 that require arbitration of work disputes; 7 (2) prohibit retaliation against workers for re- 8 fusing to arbitrate work disputes; 9 (3) provide protections to ensure that postdis- 10 pute arbitration agreements are truly voluntary and 11 with the informed consent of workers; and 12 (4) amend the National Labor Relations Act to 13 prohibit agreements and practices that interfere with 14 employees’ right to engage in concerted activity re- 15 garding work disputes. 16 SEC. 3. ARBITRATION OF WORK DISPUTES. 17 (a) IN GENERAL.—Title 9 of the United States Code 18 is amended by adding at the end the following: 19 ‘‘CHAPTER 4—ARBITRATION OF WORK 20 DISPUTES 21 ‘‘Sec. ‘‘401. Definitions. ‘‘402. Validity and enforceability. ‘‘§ 401. Definitions 22 ‘‘In this chapter— 23 VerDate Sep 11 2014 21:03 May 29, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2749.IH H2749 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 2749 IH ‘‘(1) the terms ‘commerce’, ‘employee’, and ‘em- 1 ployer’ have the meanings given the terms in section 2 3 of the Fair Labor Standards Act of 1938 (29 3 U.S.C. 203); 4 ‘‘(2) the term ‘covered entity’ means— 5 ‘‘(A) an employer; or 6 ‘‘(B) an individual or entity that is not 7 acting as an employer and engages the services 8 of a worker; 9 ‘‘(3) the term ‘predispute arbitration agree- 10 ment’ means any agreement to arbitrate a dispute 11 that had not yet arisen at the time of the making 12 of the agreement; 13 ‘‘(4) the term ‘postdispute arbitration agree- 14 ment’ means any agreement to arbitrate a dispute 15 that arose before the time of the making of the 16 agreement; 17 ‘‘(5) the term ‘worker’ means— 18 ‘‘(A) an employee; or 19 ‘‘(B) an individual who is engaged by a 20 covered entity to perform services or work as an 21 independent contractor (regardless of the label 22 or classification assigned or used by the covered 23 entity); and 24 ‘‘(6) the term ‘work dispute’— 25 VerDate Sep 11 2014 21:03 May 29, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2749.IH H2749 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 2749 IH ‘‘(A) means a dispute between one or more 1 workers (or their authorized representatives) 2 and a covered entity arising out of or related to 3 the work relationship or prospective work rela- 4 tionship between the workers and the covered 5 entity; and 6 ‘‘(B) includes, but is not limited to— 7 ‘‘(i) a dispute regarding the terms of, 8 payment for, advertising of, recruitment of, 9 referring of, arranging for, or discipline or 10 discharge in connection with such work; 11 ‘‘(ii) a dispute arising under any law 12 referred to or described in section 62(e) of 13 the Internal Revenue Code of 1986, includ- 14 ing any part of such a law not explicitly 15 referenced in such section that relates to 16 protecting individuals on a basis that is 17 protected under a law referred to or de- 18 scribed in such section; and 19 ‘‘(iii) a dispute in which an individual 20 or individuals seek certification— 21 ‘‘(I) as a class under rule 23 of 22 the Federal Rules of Civil Procedure; 23 ‘‘(II) as a collective action under 24 section 16(b) of the Fair Labor 25 VerDate Sep 11 2014 21:03 May 29, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2749.IH H2749 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 2749 IH Standards Act of 1938 (29 U.S.C. 1 216(b)); or 2 ‘‘(III) under a comparable rule or 3 provision of State law. 4 ‘‘§ 402. Validity and enforceability 5 ‘‘(a) IN GENERAL.—Notwithstanding any other chap- 6 ter of this title— 7 ‘‘(1) no predispute arbitration agreement shall 8 be valid or enforceable if it requires arbitration of a 9 work dispute; 10 ‘‘(2) no postdispute arbitration agreement that 11 requires arbitration of a work dispute shall be valid 12 or enforceable unless— 13 ‘‘(A) the agreement was not required by 14 the covered entity, obtained by coercion or 15 threat of adverse action, or made a condition of 16 employment, work, or any employment-related 17 or work-related privilege or benefit; 18 ‘‘(B) each worker entering into the agree- 19 ment was informed in writing using sufficiently 20 plain language likely to be understood by the 21 average worker of— 22 ‘‘(i) the right of the worker under 23 paragraph (3) to refuse to enter the agree- 24 ment without retaliation; and 25 VerDate Sep 11 2014 21:03 May 29, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2749.IH H2749 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 2749 IH ‘‘(ii) the protections under section 1 8(a)(6) of the National Labor Relations 2 Act (29 U.S.C. 158(a)(6)); 3 ‘‘(C) each worker entering into the agree- 4 ment entered the agreement after a waiting pe- 5 riod of not fewer than 45 days, beginning on 6 the date on which the worker was provided both 7 the final text of the agreement and the disclo- 8 sures required under subparagraph (B); and 9 ‘‘(D) each worker entering into the agree- 10 ment affirmatively consented to the agreement 11 in writing; 12 ‘‘(3) no agreement shall be valid or enforceable, 13 whereby prior to a work dispute to which the agree- 14 ment applies, a worker undertakes or promises not 15 to pursue, bring, join, litigate, or support any kind 16 of joint, class, or collective claim arising from or re- 17 lating to a work dispute in any forum that, but for 18 such agreement, is of competent jurisdiction; 19 ‘‘(4) no agreement shall be valid or enforceable, 20 whereby after a work dispute to which the agree- 21 ment applies arises, a worker undertakes or prom- 22 ises not to pursue, bring, join, litigate, or support 23 any kind of joint, class, or collective claim arising 24 from or relating to a work dispute in any forum 25 VerDate Sep 11 2014 21:03 May 29, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2749.IH H2749 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 2749 IH that, but for such agreement, is of competent juris- 1 diction, unless the agreement meets the require- 2 ments of paragraph (2) of this subsection; and 3 ‘‘(5) no covered entity may retaliate or threaten 4 to retaliate against a worker for refusing to enter 5 into an agreement that provides for arbitration of a 6 work dispute. 7 ‘‘(b) STATUTE OF LIMITATIONS.—During the waiting 8 period described in subsection (a)(2)(C), the statute of 9 limitations for any claims that arise from or form the basis 10 for the applicable work dispute shall be tolled. 11 ‘‘(c) CIVIL ACTION.—Any person who is injured by 12 reason of a violation of subsection (a)(5) may bring a civil 13 action in the appropriate district court of the United 14 States against the covered entity within 2 years of the vio- 15 lation, or within 3 years if such violation is willful. Relief 16 granted in such an action shall include a reasonable attor- 17 ney’s fee, other reasonable costs associated with maintain- 18 ing the action, and any appropriate relief authorized by 19 section 706(g) of the Civil Rights Act of 1964 (42 U.S.C. 20 2000e–5(g)) or by section 1977A(b) of the Revised Stat- 21 utes (42 U.S.C. 1981a(b)). 22 ‘‘(d) APPLICABILITY.— 23 ‘‘(1) IN GENERAL.—This chapter applies to cov- 24 ered entities and workers engaged in activity affect- 25 VerDate Sep 11 2014 21:03 May 29, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2749.IH H2749 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 2749 IH ing commerce to the fullest extent permitted by the 1 Constitution of the United States, including the 2 work of persons engaged in domestic service in 3 households, as described in section 2(a) of the Fair 4 Labor Standards Act of 1938 (29 U.S.C. 202(a)). 5 An issue as to whether this chapter applies to an ar- 6 bitration agreement shall be determined under Fed- 7 eral law. The applicability of this chapter to an 8 agreement to arbitrate and the validity and enforce- 9 ability of an agreement to which this chapter applies 10 shall be determined by a court, rather than an arbi- 11 trator, regardless of whether any contractual provi- 12 sion purports to delegate such determinations to the 13 arbitrator and irrespective of whether the party re- 14 sisting arbitration challenges the arbitration agree- 15 ment specifically or in conjunction with other terms 16 of the contract containing such agreement. 17 ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.— 18 Nothing in this chapter shall apply to any arbitra- 19 tion provision in a contract between a covered entity 20 and a labor organization, except that no such arbi- 21 tration provision shall have the effect of waiving the 22 right of a worker to seek judicial enforcement of a 23 right arising under a provision of the Constitution of 24 the United States, the constitution of a State, or a 25 VerDate Sep 11 2014 21:03 May 29, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2749.IH H2749 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 2749 IH Federal or State statute, or public policy arising 1 therefrom.’’. 2 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 3 (1) IN GENERAL.—Title 9 of the United States 4 Code is amended— 5 (A) in section 1, by striking ‘‘of seamen,’’ 6 and all that follows through ‘‘interstate com- 7 merce’’; 8 (B) in section 2, by inserting ‘‘or as other- 9 wise provided in chapter 4’’ before the period at 10 the end; 11 (C) in section 208— 12 (i) in the section heading, by striking 13 ‘‘Chapter 1; residual application’’ 14 and inserting ‘‘Application’’; and 15 (ii) by adding at the end the fol- 16 lowing: ‘‘This chapter applies to the extent 17 that this chapter is not in conflict with 18 chapter 4.’’; and 19 (D) in section 307— 20 (i) in the section heading, by striking 21 ‘‘Chapter 1; residual application’’ 22 and inserting ‘‘Application’’; and 23 (ii) by adding at the end the fol- 24 lowing: ‘‘This chapter applies to the extent 25 VerDate Sep 11 2014 21:03 May 29, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2749.IH H2749 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 2749 IH that this chapter is not in conflict with 1 chapter 4.’’. 2 (2) TABLE OF SECTIONS.— 3 (A) CHAPTER 2.—The table of sections for 4 chapter 2 of title 9, United States Code, is 5 amended by striking the item relating to section 6 208 and inserting the following: 7 ‘‘208. Application.’’. (B) CHAPTER 3.—The table of sections for 8 chapter 3 of title 9, United States Code, is 9 amended by striking the item relating to section 10 307 and inserting the following: 11 ‘‘307. Application.’’. (3) TABLE OF CHAPTERS.—The table of chap- 12 ters for title 9, United States Code, is amended by 13 adding at the end the following: 14 ‘‘4. Arbitration of work disputes .............................................................. 401.’’. SEC. 4. PROTECTION OF CONCERTED ACTIVITY. 15 (a) AGREEMENTS.—Section 8(a) of the National 16 Labor Relations Act (29 U.S.C. 158(a)) is amended— 17 (1) in paragraph (5), by striking the period at 18 the end and inserting ‘‘; and’’; and 19 (2) by adding at the end the following: 20 ‘‘(6)(A) to enter into or attempt to enforce any 21 agreement, express or implied, whereby prior to a 22 dispute to which the agreement applies, an employee 23 VerDate Sep 11 2014 21:03 May 29, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2749.IH H2749 pamtmann on DSKBFK8HB2PROD with BILLS 11 •HR 2749 IH undertakes or promises not to pursue, bring, join, 1 litigate, or support any kind of joint, class, or collec- 2 tive claim arising from or relating to the employ- 3 ment of such employee in any forum that, but for 4 such agreement, is of competent jurisdiction; 5 ‘‘(B) to coerce such an employee into under- 6 taking or promising not to pursue, bring, join, liti- 7 gate, or support any kind of joint, class, or collective 8 claim arising from or relating to the employment of 9 such employee; or 10 ‘‘(C) to retaliate or threaten to retaliate against 11 an employee for refusing to undertake or promise 12 not to pursue, bring, join, litigate, or support any 13 kind of joint, class, or collective claim arising from 14 or relating to the employment of such employee: 15 Provided, That any agreement that violates this 16 paragraph or results from a violation of this para- 17 graph shall be to such extent unenforceable and 18 void: Provided further, That this paragraph shall not 19 apply to any agreement embodied in or expressly 20 permitted by a contract between an employer and a 21 labor organization.’’. 22 (b) CONFORMING AMENDMENT.—Section 10(b) of 23 the National Labor Relations Act (29 U.S.C. 160(b)) is 24 amended by striking ‘‘discharge’’ and inserting ‘‘dis- 25 VerDate Sep 11 2014 21:03 May 29, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2749.IH H2749 pamtmann on DSKBFK8HB2PROD with BILLS 12 •HR 2749 IH charge, or unless the person aggrieved thereby is an em- 1 ployee alleging a violation of section 8(a)(6) whose charge 2 involves a postdispute arbitration agreement that meets 3 the requirements under section 402(a)(2) of title 9, [Text truncated for display. 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