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. GILLIBRAND, 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Restoring Justice for 

5 Workers Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) Millions of workers are currently forced to 

9 accept, as a condition of employment or work, conVerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491

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1 tractual provisions that block their access to the 

2 courts or prohibit them from joining together with 

3 other workers to seek joint, class, or collective relief 

4 for violations of their rights. This has led to wide5 spread nonenforcement of workers’ rights and has 

6 permitted significant violations of those rights to 

7 continue unabated. 

8 (2) Most workers have little or no meaningful 

9 choice regarding whether to accept these provisions. 

10 Often, workers are not even aware that they have 

11 given up the right to seek recourse in court or have 

12 waived their right to join other workers in joint, 

13 class, or collective actions. 

14 (3) The Federal Arbitration Act (now enacted 

15 as chapter 1 of title 9, United States Code) was in16 tended to clarify the ability of commercial entities of 

17 generally similar sophistication and bargaining 

18 power to voluntarily agree to use arbitration to re19 solve disputes between them. Despite this congres20 sional intent, the Supreme Court of the United 

21 States has interpreted the Federal Arbitration Act 

22 so that it now extends to work disputes. 

23 (4) The National Labor Relations Act (29 

24 U.S.C. 151 et seq.) protects employees’ right to en25 gage in concerted activities for the purpose of muVerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491

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1 tual aid or protection. This was intended and long 

2 understood to encompass employees’ right to collec3 tively seek relief for violations of their workplace 

4 rights. However, contrary to the plain text of the 

5 law and congressional intent, the Supreme Court of 

6 the United States, in Epic Systems Corp. v. Lewis, 

7 138 S. Ct. 1612 (2018), decided that employees may 

8 be forced, as a condition of employment, to waive 

9 their right to act collectively with regard to employ10 ment actions. 

11 (5) Forced individual dispute resolution under12 mines workers’ rights and exacerbates the inequality 

13 of bargaining power between workers and employers 

14 because joining a joint, class, or collective action is 

15 often the only way workers can afford to seek relief 

16 for violations of their rights. 

17 (6) Workers who are forced to submit to indi18 vidual dispute resolution often seek no redress at all 

19 due to well-founded fear of retaliation. 

20 (7) Protecting the rights of workers to individ21 ually or concertedly seek relief for violations of their 

22 labor rights through appropriate forums protects the 

23 public interest and safeguards commerce from in24 jury. 


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1 SEC. 3. PURPOSES. 

2 The purposes of this Act are to— 

3 (1) prohibit predispute arbitration agreements 

4 that require arbitration of work disputes; 

5 (2) prohibit retaliation against workers for re6 fusing to arbitrate work disputes; 

7 (3) provide protections to ensure that postdis8 pute arbitration agreements are truly voluntary and 

9 with the informed consent of workers; and 

10 (4) amend the National Labor Relations Act to 

11 prohibit agreements and practices that interfere with 

12 employees’ right to engage in concerted activity re13 garding work disputes. 

14 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 undertakes or promises not to pursue, bring, join, 

24 litigate, or support any kind of joint, class, or collec25 tive claim arising from or relating to the employVerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491

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1 ment of such employee in any forum that, but for 

2 such agreement, is of competent jurisdiction; 

3 ‘‘(B) to coerce such an employee into under4 taking or promising not to pursue, bring, join, liti5 gate, or support any kind of joint, class, or collective 

6 claim arising from or relating to the employment of 

7 such employee; or 

8 ‘‘(C) to retaliate or threaten to retaliate against 

9 an employee for refusing to undertake or promise 

10 not to pursue, bring, join, litigate, or support any 

11 kind of joint, class, or collective claim arising from 

12 or relating to the employment of such employee: 

13 Provided, That any agreement that violates this 

14 paragraph or results from a violation of this para15 graph shall be to such extent unenforceable and 

16 void: Provided further, That this paragraph shall not 

17 apply to any agreement embodied in or expressly 

18 permitted by a contract between an employer and a 

19 labor organization.’’. 

20 (b) CONFORMING AMENDMENT.—Section 10(b) of 

21 the National Labor Relations Act (29 U.S.C. 160(b)) is 

22 amended by striking ‘‘discharge’’ and inserting ‘‘dis23 charge, or unless the person aggrieved thereby is an em24 ployee alleging a violation of section 8(a)(6) whose charge 

25 involves a postdispute arbitration agreement that meets 


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1 the requirements under section 402(a)(2) of title 9, United 

2 States Code, or an agreement described in section 

3 402(a)(4) of such title that meets the requirements under 

4 subparagraphs (A) through (D) of section 402(a)(2) of 

5 such title, in which event the six-month period shall be 

6 computed from the day the waiting period described in 

7 subparagraph (C) of such section ends’’. 

8 SEC. 5. ARBITRATION OF WORK DISPUTES. 

9 (a) IN GENERAL.—Title 9 of the United States Code 

10 is amended by adding at the end the following: 

11 ‘‘CHAPTER 4—ARBITRATION OF WORK 

12 DISPUTES 

‘‘Sec. 

‘‘401. Definitions. 

‘‘402. Validity and enforceability. 

13 ‘‘§ 401. Definitions 

14 ‘‘In this chapter— 

15 ‘‘(1) the terms ‘commerce’, ‘employee’, and ‘em16 ployer’ have the meanings given the terms in section 

17 3 of the Fair Labor Standards Act of 1938 (29 

18 U.S.C. 203); 

19 ‘‘(2) the term ‘covered entity’ means— 

20 ‘‘(A) an employer; or 

21 ‘‘(B) an individual or entity that is not 

22 acting as an employer and engages the services 

23 of a worker; 


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1 ‘‘(3) the term ‘predispute arbitration agree2 ment’ means any agreement to arbitrate a dispute 

3 that had not yet arisen at the time of the making 

4 of the agreement; 

5 ‘‘(4) the term ‘postdispute arbitration agree6 ment’ means any agreement to arbitrate a dispute 

7 that arose before the time of the making of the 

8 agreement; 

9 ‘‘(5) the term ‘worker’ means— 

10 ‘‘(A) an employee; or 

11 ‘‘(B) an individual who is engaged by a 

12 covered entity to perform services or work as an 

13 independent contractor (regardless of the label 

14 or classification assigned or used by the covered 

15 entity); and 

16 ‘‘(6) the term ‘work dispute’— 

17 ‘‘(A) means a dispute between one or more 

18 workers (or their authorized representatives) 

19 and a covered entity arising out of or related to 

20 the work relationship or prospective work rela21 tionship between the workers and the covered 

22 entity; and 

23 ‘‘(B) includes, but is not limited to— 

24 ‘‘(i) a dispute regarding the terms of, 

25 payment for, advertising of, recruitment of, 


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1 referring of, arranging for, or discipline or 

2 discharge in connection with such work; 

3 ‘‘(ii) a dispute arising under any law 

4 referred to or described in section 62(e) of 

5 the Internal Revenue Code of 1986, includ6 ing any part of such a law not explicitly 

7 referenced in such section that relates to 

8 protecting individuals on a basis that is 

9 protected under a law referred to or de10 scribed in such section; and 

11 ‘‘(iii) a dispute in which an individual 

12 or individuals seek certification— 

13 ‘‘(I) as a class under rule 23 of 

14 the Federal Rules of Civil Procedure; 

15 ‘‘(II) as a collective action under 

16 section 16(b) of the Fair Labor 

17 Standards Act of 1938 (29 U.S.C. 

18 216(b)); or 

19 ‘‘(III) under a comparable rule or 

20 provision of State law. 

21 ‘‘§ 402. Validity and enforceability 

22 ‘‘(a) IN GENERAL.—Notwithstanding any other chap23 ter of this title— 


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1 ‘‘(1) no predispute arbitration agreement shall 

2 be valid or enforceable if it requires arbitration of a 

3 work dispute; 

4 ‘‘(2) no postdispute arbitration agreement that 

5 requires arbitration of a work dispute shall be valid 

6 or enforceable unless— 

7 ‘‘(A) the agreement was not required by 

8 the covered entity, obtained by coercion or 

9 threat of adverse action, or made a condition of 

10 employment, work, or any employment-related 

11 or work-related privilege or benefit; 

12 ‘‘(B) each worker entering into the agree13 ment was informed in writing using sufficiently 

14 plain language likely to be understood by the 

15 average worker of— 

16 ‘‘(i) the right of the worker under 

17 paragraph (3) to refuse to enter the agree18 ment without retaliation; and 

19 ‘‘(ii) the protections under section 

20 8(a)(6) of the National Labor Relations 

21 Act (29 U.S.C. 158(a)(6)); 

22 ‘‘(C) each worker entering into the agree23 ment entered the agreement after a waiting pe24 riod of not fewer than 45 days, beginning on 

25 the date on which the worker was provided both 


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1 the final text of the agreement and the disclo2 sures required under subparagraph (B); and 

3 ‘‘(D) each worker entering into the agree4 ment affirmatively consented to the agreement 

5 in writing; 

6 ‘‘(3) no agreement shall be valid or enforceable, 

7 whereby prior to a work dispute to which the agree8 ment applies, a worker undertakes or promises not 

9 to pursue, bring, join, litigate, or support any kind 

10 of joint, class, or collective claim arising from or re11 lating to a work dispute in any forum that, but for 

12 such agreement, is of competent jurisdiction; 

13 ‘‘(4) no agreement shall be valid or enforceable, 

14 whereby after a work dispute to which the agree15 ment applies arises, a worker undertakes or prom16 ises not to pursue, bring, join, litigate, or support 

17 any kind of joint, class, or collective claim arising 

18 from or relating to a work dispute in any forum 

19 that, but for such agreement, is of competent juris20 diction, unless the agreement meets the require21 ments of paragraph (2) of this subsection; and 

22 ‘‘(5) no covered entity may retaliate or threaten 

23 to retaliate against a worker for refusing to enter 

24 into an agreement that provides for arbitration of a 

25 work dispute. 


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1 ‘‘(b) STATUTE OF LIMITATIONS.—During the waiting 

2 period described in subsection (a)(2)(C), the statute of 

3 limitations for any claims that arise from or form the basis 

4 for the applicable work dispute shall be tolled. 

5 ‘‘(c) CIVIL ACTION.—Any person who is injured by 

6 reason of a violation of subsection (a)(5) may bring a civil 

7 action in the appropriate district court of the United 

8 States against the covered entity within 2 years of the vio9 lation, or within 3 years if such violation is willful. Relief 

10 granted in such an action shall include a reasonable attor11 ney’s fee, other reasonable costs associated with maintain12 ing the action, and any appropriate relief authorized by 

13 section 706(g) of the Civil Rights Act of 1964 (42 U.S.C. 

14 2000e–5(g)) or by section 1977A(b) of the Revised Stat15 utes (42 U.S.C. 1981a(b)). 

16 ‘‘(d) APPLICABILITY.— 

17 ‘‘(1) IN GENERAL.—This chapter applies to cov18 ered entities and workers engaged in activity affect19 ing commerce to the fullest extent permitted by the 

20 Constitution of the United States, including the 

21 work of persons engaged in domestic service in 

22 households, as described in section 2(a) of the Fair 

23 Labor Standards Act of 1938 (29 U.S.C. 202(a)). 

24 An issue as to whether this chapter applies to an ar25 bitration agreement shall be determined under FedVerDate Sep 11 2014 03:41 May 25, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1491.IS S1491

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1 eral law. The applicability of this chapter to an 

2 agreement to arbitrate and the validity and enforce3 ability of an agreement to which this chapter applies 

4 shall be determined by a court, rather than an arbi5 trator, regardless of whether any contractual provi6 sion purports to delegate such determinations to the 

7 arbitrator and irrespective of whether the party re8 sisting arbitration challenges the arbitration agree9 ment specifically or in conjunction with other terms 

10 of the contract containing such agreement. 

11 ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.— 

12 Nothing in this chapter shall apply to any arbitra13 tion provision in a contract between a covered entity 

14 and a labor organization, except that no such arbi15 tration provision shall have the effect of waiving the 

16 right of a worker to seek judicial enforcement of a 

17 right arising under a provision of the Constitution of 

18 the United States, the constitution of a State, or a 

19 Federal or State statute, or public policy arising 

20 therefrom.’’. 

21 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

22 (1) IN GENERAL.—Title 9 of the United States 

23 Code is amended— 


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1 (A) in section 1, by striking ‘‘of seamen,’’ 

2 and all that follows through ‘‘interstate com3 merce’’; 

4 (B) in section 2, by inserting ‘‘or as other5 wise provided in chapter 4’’ before the period at 

6 the end; 

7 (C) in section 208— 

8 (i) in the section heading, by striking 

9 ‘‘Chapter 1; residual application’’ 

10 and inserting ‘‘Application’’; and 

11 (ii) by adding at the end the fol12 lowing: ‘‘This chapter applies to the extent 

13 that this chapter is not in conflict with 

14 chapter 4.’’; and 

15 (D) in section 307— 

16 (i) in the section heading, by striking 

17 ‘‘Chapter 1; residual application’’ 

18 and inserting ‘‘Application’’; and 

19 (ii) by adding at the end the fol20 lowing: ‘‘This chapter applies to the extent 

21 that this chapter is not in conflict with 

22 chapter 4.’’. 

23 (2) TABLE OF SECTIONS.— 

24 (A) CHAPTER 2.—The table of sections for 

25 chapter 2 of title 9, United States Code, is 


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1 amended by striking the item relating to section 

2 208 and inserting the following: 

‘‘208. Application.’’. 

3 (B) CHAPTER 3.—The table of sections for 

4 chapter 3 of title 9, United States Code, is 

5 amended by striking the item relating to section 

6 307 and inserting the following: 

‘‘307. Application.’’. 

7 (3) TABLE OF CHAPTERS.—The table of chap8 ters for title 9, United States Code, is amended by 

9 adding at the end the following: 

‘‘4. Arbitration of work disputes .............................................................. 401.’’. 

10 SEC. 6. EFFECTIVE DATE. 

11 This Act, and the amendments made by this Act, 

12 shall take effect on the date of enactment of this Act and 

13 shall apply with respect to any dispute or claim that arises 

14 or accrues on or after such date, including any dispute 

15 or claim to which an agreement predating such date ap16 plies. 

Æ 


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