II 118TH CONGRESS 1ST SESSION S. 1376 To amend title 9 of the United States Code with respect to arbitration. IN THE SENATE OF THE UNITED STATES APRIL 27, 2023 Mr. BLUMENTHAL (for himself, Mr. MARKEY, Mr. SCHATZ, Mr. WHITE- HOUSE, Ms. WARREN, Mr. WARNOCK, Mr. MERKLEY, Mr. WYDEN, Mr. DURBIN, Mr. SANDERS, Mr. REED, Ms. CORTEZ MASTO, Mr. CASEY, Mr. KAINE, Mrs. GILLIBRAND, Ms. DUCKWORTH, Mrs. MURRAY, Ms. ROSEN, Mr. COONS, Mr. BROWN, Mr. MURPHY, Mrs. FEINSTEIN, Mr. BOOKER, Mr. VAN HOLLEN, Ms. BALDWIN, Ms. HIRONO, Mr. MENENDEZ, Ms. CANTWELL, Ms. KLOBUCHAR, Mr. PADILLA, Ms. HASSAN, Mr. WELCH, Mr. LUJA´N, Ms. SMITH, Mr. CARPER, Mr. BENNET, and Mrs. SHAHEEN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 9 of the United States Code with respect to arbitration. 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 ‘‘Forced Arbitration In- 4 justice Repeal Act’’. 5 SEC. 2. PURPOSES. 6 The purposes of this Act are to— 7 VerDate Sep 11 2014 00:59 May 05, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1376.IS S1376 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1376 IS (1) prohibit predispute arbitration agreements 1 that force arbitration of future employment, con- 2 sumer, antitrust, or civil rights disputes; and 3 (2) prohibit agreements and practices that 4 interfere with the right of individuals, workers, and 5 small businesses to participate in a joint, class, or 6 collective action related to an employment, con- 7 sumer, antitrust, or civil rights dispute. 8 SEC. 3. ARBITRATION OF EMPLOYMENT, CONSUMER, ANTI- 9 TRUST, AND CIVIL RIGHTS DISPUTES. 10 (a) IN GENERAL.—Title 9 of the United States Code 11 is amended by adding at the end the following: 12 ‘‘CHAPTER 5—ARBITRATION OF EMPLOY- 13 MENT, CONSUMER, ANTITRUST, AND 14 CIVIL RIGHTS DISPUTES 15 ‘‘Sec. ‘‘501. Definitions. ‘‘502. No validity or enforceability. ‘‘§ 501. Definitions 16 ‘‘In this chapter— 17 ‘‘(1) the term ‘antitrust dispute’ means a dis- 18 pute— 19 ‘‘(A) arising from an alleged violation of 20 the antitrust laws (as defined in subsection (a) 21 of the first section of the Clayton Act (15 22 U.S.C. 12(a))) or State antitrust laws; and 23 VerDate Sep 11 2014 00:59 May 05, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1376.IS S1376 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1376 IS ‘‘(B) in which the plaintiffs seek certifi- 1 cation as a class under rule 23 of the Federal 2 Rules of Civil Procedure or a comparable rule 3 or provision of State law; 4 ‘‘(2) the term ‘civil rights dispute’ means a dis- 5 pute— 6 ‘‘(A) arising from an alleged violation of— 7 ‘‘(i) the Constitution of the United 8 States or the constitution of a State; or 9 ‘‘(ii) any Federal, State, or local law 10 that prohibits discrimination on the basis 11 of race, sex, age, gender identity, sexual 12 orientation, disability, religion, national or- 13 igin, or any legally protected status in edu- 14 cation, employment, credit, housing, public 15 accommodations and facilities, voting, vet- 16 erans or servicemembers, health care, or a 17 program funded or conducted by the Fed- 18 eral Government or a State government, 19 including any law referred to or described 20 in section 62(e) of the Internal Revenue 21 Code of 1986, including parts of such law 22 not explicitly referenced in such section but 23 that relate to protecting individuals on any 24 such basis; and 25 VerDate Sep 11 2014 00:59 May 05, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1376.IS S1376 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1376 IS ‘‘(B) in which at least 1 party alleging a 1 violation described in subparagraph (A) is an 2 individual (or an authorized representative of 3 an individual), including an individual seeking 4 certification as a class under rule 23 of the 5 Federal Rules of Civil Procedure or a com- 6 parable rule or provision of State law; 7 ‘‘(3) the term ‘consumer dispute’ means a dis- 8 pute between— 9 ‘‘(A) 1 or more individuals, including an 10 individual who seeks certification as a class 11 under rule 23 of the Federal Rules of Civil Pro- 12 cedure or a comparable rule or provision of 13 State law, who seek or acquire real or personal 14 property, services (including services related to 15 digital technology), securities or other invest- 16 ments, money, or credit for personal, family, or 17 household purposes; and 18 ‘‘(B)(i) the seller or provider of such prop- 19 erty, services, securities or other investments, 20 money, or credit; or 21 ‘‘(ii) a third party involved in the selling, 22 providing of, payment for, receipt or use of in- 23 formation about, or other relationship to any 24 VerDate Sep 11 2014 00:59 May 05, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1376.IS S1376 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1376 IS such property, services, securities or other in- 1 vestments, money, or credit; 2 ‘‘(4) the term ‘employment dispute’— 3 ‘‘(A) means a dispute between 1 or more 4 individuals (or their authorized representative) 5 and a person arising out of or related to the 6 work relationship or prospective work relation- 7 ship between them, including a dispute regard- 8 ing the terms of or payment for, advertising of, 9 recruiting for, referring of, arranging for, or 10 discipline or discharge in connection with, such 11 work, regardless of whether the individual is or 12 would be classified as an employee or an inde- 13 pendent contractor with respect to such work; 14 and 15 ‘‘(B) includes— 16 ‘‘(i) a dispute arising under any law 17 referred to or described in section 62(e) of 18 the Internal Revenue Code of 1986, includ- 19 ing parts of such law not explicitly ref- 20 erenced in such section but that relate to 21 protecting individuals on any such basis; 22 and 23 ‘‘(ii) a dispute in which an individual 24 seeks certification as a class under rule 23 25 VerDate Sep 11 2014 00:59 May 05, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1376.IS S1376 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1376 IS of the Federal Rules of Civil Procedure or 1 as a collective action under section 16(b) 2 of the Fair Labor Standards Act (29 3 U.S.C. 216(b)), or a comparable rule or 4 provision of State law; 5 ‘‘(5) the term ‘predispute arbitration agree- 6 ment’ means an agreement to arbitrate a dispute 7 that has not yet arisen at the time of the making 8 of the agreement; and 9 ‘‘(6) the term ‘predispute joint-action waiver’ 10 means an agreement, whether or not part of a 11 predispute arbitration agreement, that would pro- 12 hibit, or waive the right of, one of the parties to the 13 agreement to participate in a joint, class, or collec- 14 tive action in a judicial, arbitral, administrative, or 15 other forum, concerning a dispute that has not yet 16 arisen at the time of the making of the agreement. 17 ‘‘§ 502. No validity or enforceability 18 ‘‘(a) IN GENERAL.—Notwithstanding any other pro- 19 vision of this title, no predispute arbitration agreement or 20 predispute joint-action waiver shall be valid or enforceable 21 with respect to an employment dispute, consumer dispute, 22 antitrust dispute, or civil rights dispute. 23 ‘‘(b) APPLICABILITY.— 24 VerDate Sep 11 2014 00:59 May 05, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1376.IS S1376 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1376 IS ‘‘(1) IN GENERAL.—An issue as to whether this 1 chapter applies with respect to a dispute shall be de- 2 termined under Federal law. The applicability of this 3 chapter to an agreement to arbitrate and the validity 4 and enforceability of an agreement to which this 5 chapter applies shall be determined by a court, rath- 6 er than an arbitrator, irrespective of whether the 7 party resisting arbitration challenges the arbitration 8 agreement specifically or in conjunction with other 9 terms of the contract containing such agreement, 10 and irrespective of whether the agreement purports 11 to delegate such determinations to an arbitrator. 12 ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.— 13 Nothing in this chapter shall apply to any arbitra- 14 tion provision in a contract between an employer and 15 a labor organization or between labor organizations, 16 except that no such arbitration provision shall have 17 the effect of waiving the right of a worker to seek 18 judicial enforcement of a right arising under a provi- 19 sion of the Constitution of the United States, a 20 State constitution, or a Federal or State statute, or 21 public policy arising therefrom.’’. 22 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 23 (1) IN GENERAL.—Title 9 of the United States 24 Code is amended— 25 VerDate Sep 11 2014 00:59 May 05, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1376.IS S1376 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1376 IS (A) in section 1, by striking ‘‘of seamen,’’ 1 and all that follows through ‘‘interstate com- 2 merce’’ and inserting ‘‘of individuals, regardless 3 of whether the individuals are designated as 4 employees or independent contractors for other 5 purposes’’; 6 (B) in section 2, by inserting ‘‘or 5’’ before 7 the period at the end; 8 (C) in section 208, in the second sentence, 9 by inserting ‘‘or 5’’ before the period at the 10 end; and 11 (D) in section 307, in the second sentence, 12 by inserting ‘‘or 5’’ before the period at the 13 end. 14 (2) TABLE OF CHAPTERS.—The table of chap- 15 ters of title 9, United States Code, is amended by 16 adding at the end the following: 17 ‘‘5. Arbitration of employment, consumer, antitrust, and civil rights disputes .............................................. 501’’. SEC. 4. EFFECTIVE DATE. 18 This Act, and the amendments made by this Act, 19 shall take effect on the date of enactment of this Act and 20 shall apply with respect to any dispute or claim that arises 21 or accrues on or after such date. 22 Æ VerDate Sep 11 2014 00:59 May 05, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S1376.IS S1376 kjohnson on DSK79L0C42PROD with BILLS