On October 30, 2018, Congressmen Jerrold Nadler (D-N.Y.) and Bobby Scott (D-VA) took a crucial step to combat employer’s use of arbitration agreements to restrict workers’ rights by introducing the Restore Justice for Workers Act (“Act”). The proposed legislation strives to open “the courthouse doors for workers by prohibiting the use of forced arbitration clauses in employment contracts and prohibiting employers from requiring employees to waive their right to engage in joint, class, or collective legal action.”
Specifically, the Act proposes to: (1) prohibit pre-dispute arbitration agreements that require arbitration of employment disputes; (2) prohibit retaliation against employees for refusing to arbitrate employment disputes; (3) provide protections to ensure that post dispute arbitration agreements are truly voluntary and with the informed consent of employees; and (4) amend the National Labor Relations Act to prohibit agreements and practices that interfere with employees’ rights to collectively litigate employment disputes.
The proposed legislation is significant in light of both the Supreme Court’s May 2018 decision in Epic Systems v. Lewis and the #MeToo and #TimesUp movements. In Epic Systems, the Supreme Court found that employers may force workers to sign arbitration agreements containing class action waivers as a condition of employment. The Act would effectively overturn that decision and ensure that workers are not forced to sign away their right to bring employment claims in court on a joint, class, or collective basis. Further, the #MeToo and #TimesUp movements demonstrate how mandatory arbitration agreements often shield organizations from public scrutiny for failing to take adequate measures to protect individuals from harassment and abuse. The proposed legislation will give workers the option to pursue employment claims, including discrimination and sexual harassment, in the forum of their choosing.
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About Patrick J. Collopy