HR8691-118

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

2. Purposes The purposes of this Act are to— prohibit predispute arbitration agreements that require arbitration of work disputes; prohibit retaliation against workers for refusing to arbitrate work disputes; provide protections to ensure that postdispute arbitration agreements are truly voluntary and with the informed consent of workers; and amend the National Labor Relations Act to prohibit agreements and practices that interfere with employees' right to engage in concerted activity regarding work disputes.

3. Protection of concerted activity Section 8(a) of the National Labor Relations Act (29 U.S.C. 158(a)) is amended— in paragraph (5), by striking the period at the end and inserting ; and; and by adding at the end the following: 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; 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 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: 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. (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..

4. Arbitration of work disputes Title 9 of the United States Code is amended by adding at the end the following: In this chapter: 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). The term covered entity means— an employer; or an individual or entity that is not acting as an employer and engages the services of a worker. The term predispute arbitration agreement has the meaning given that term in section 401. 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. The term postdispute arbitration agreement means any agreement to arbitrate a dispute that arose before the time of the making of the agreement. 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. the term work dispute— 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 includes— 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; 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 a dispute in which an individual or individuals seek certification— as a class under rule 23 of the Federal Rules of Civil Procedure; as a collective action under section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)); or under a comparable rule or provision of State law. The term worker means— an employee; or 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). Notwithstanding any other chapter of this title— no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a work dispute; no postdispute arbitration agreement that requires arbitration of a work dispute shall be valid or enforceable unless— 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; each worker entering into the agreement was informed in writing using sufficiently plain language likely to be understood by the average worker of— the right of the worker under paragraph (5) to refuse to enter the agreement without retaliation; and the protections under section 8(a)(6) of the National Labor Relations Act (29 U.S.C. 158(a)(6)); 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 each worker entering into the agreement affirmatively consented to the agreement in writing; no predispute joint-action waiver of a work dispute shall be valid or enforceable; 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 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. 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. 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)). 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. 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. Title 9 of the United States Code is amended— in section 1, by striking of seamen, and all that follows through interstate commerce; in section 2, by inserting or 5 before the period at the end; in section 208, in the second sentence, by inserting or 5 before the period at the end; and in section 307, in the second sentence, by inserting or 5 before the period at the end. The table of chapters for title 9, United States Code, is amended by adding at the end the following: 5Arbitration of Work DisputesSec. 501. Definitions.502. Validity and enforceability.501.DefinitionsIn this chapter:(1)Commerce; employee; employerThe 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 entityThe 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 agreementThe term predispute arbitration agreement has the meaning given that term in section 401.(4)Predispute joint-action waiver of a work disputeThe 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 agreementThe 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 disputeThe 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 disputethe 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)WorkerThe 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). 502.Validity and enforceability(a)In generalNotwithstanding 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 limitationsDuring 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 actionAny 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 generalThis 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 lawAn issue as to whether this chapter applies to an arbitration agreement shall be determined under Federal law.(B)Application determined by courtThe 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 agreementsNothing 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.. 5.Arbitration of work disputes501..

501. Definitions In this chapter: 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). The term covered entity means— an employer; or an individual or entity that is not acting as an employer and engages the services of a worker. The term predispute arbitration agreement has the meaning given that term in section 401. 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. The term postdispute arbitration agreement means any agreement to arbitrate a dispute that arose before the time of the making of the agreement. 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. the term work dispute— 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 includes— 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; 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 a dispute in which an individual or individuals seek certification— as a class under rule 23 of the Federal Rules of Civil Procedure; as a collective action under section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)); or under a comparable rule or provision of State law. The term worker means— an employee; or 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).

502. Validity and enforceability Notwithstanding any other chapter of this title— no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a work dispute; no postdispute arbitration agreement that requires arbitration of a work dispute shall be valid or enforceable unless— 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; each worker entering into the agreement was informed in writing using sufficiently plain language likely to be understood by the average worker of— the right of the worker under paragraph (5) to refuse to enter the agreement without retaliation; and the protections under section 8(a)(6) of the National Labor Relations Act (29 U.S.C. 158(a)(6)); 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 each worker entering into the agreement affirmatively consented to the agreement in writing; no predispute joint-action waiver of a work dispute shall be valid or enforceable; 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 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. 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. 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)). 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. 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.

5. 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.