II 

117TH CONGRESS 

2D SESSION S. 4219 

To amend the Employee Retirement Income Security Act of 1974 to provide 

that any mandatory predispute or coerced postdispute arbitration clause, 

class action waiver, representation waiver, or discretionary clause with 

respect to a plan is unenforceable, to prohibit any such clause or waiver 

from being included in a plan document or other agreement with plan 

participants, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 12, 2022 

Ms. SMITH introduced the following bill; which was read twice and referred 

to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend the Employee Retirement Income Security Act 

of 1974 to provide that any mandatory predispute or 

coerced postdispute arbitration clause, class action waiver, representation waiver, or discretionary clause with 

respect to a plan is unenforceable, to prohibit any such 

clause or waiver from being included in a plan document 

or other agreement with plan participants, 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, 


pbinns on DSKJLVW7X2PROD with $$_JOB
2 

•S 4219 IS

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Employee and Retiree 

3 Access to Justice Act of 2022’’. 

4 SEC. 2. UNENFORCEABLE ARBITRATION CLAUSES, CLASS 

5 ACTION WAIVERS, REPRESENTATION WAIV6 ERS, AND DISCRETIONARY CLAUSES. 

7 (a) IN GENERAL.—Section 502 of the Employee Re8 tirement Income Security Act of 1974 (29 U.S.C. 1132) 

9 is amended by adding at the end the following: 

10 ‘‘(n)(1) In any civil action brought by, or on behalf 

11 of, a participant or beneficiary pursuant to this section 

12 or with respect to a common law claim involving a plan 

13 or plan benefit, notwithstanding any other provision of 

14 law— 

15 ‘‘(A) no predispute arbitration provision shall 

16 be valid or enforceable if it requires arbitration of a 

17 matter related to a claim brought under this section; 

18 ‘‘(B) no postdispute arbitration provision shall 

19 be valid or enforceable unless— 

20 ‘‘(i) the provision was not required by any 

21 person, obtained by coercion or threat of ad22 verse action, or made a condition of partici23 pating in a plan, receiving benefits under a 

24 plan, or receiving any other employment, work, 

25 or any employment-related or work-related 

26 privilege or benefit; 


pbinns on DSKJLVW7X2PROD with $$_JOB
3 

•S 4219 IS

1 ‘‘(ii) each participant or beneficiary agree2 ing to the provision was informed, through a 

3 paper notice, in a manner reasonably calculated 

4 to be understood by the average plan partici5 pant, of the right of the participant or bene6 ficiary under subparagraph (C) to refuse to 

7 agree to the provision without retaliation or 

8 threat of retaliation; 

9 ‘‘(iii) each participant or beneficiary agree10 ing to the provision so agreed after a waiting 

11 period of not fewer than 45 days, beginning on 

12 the date on which the participant or beneficiary 

13 was provided both the final text of the provision 

14 and the disclosures required under clause (ii); 

15 and 

16 ‘‘(iv) each participant or beneficiary agree17 ing to the provision affirmatively consented to 

18 the provision in writing; 

19 ‘‘(C) no covered provision shall be valid or en20 forceable, if prior to a dispute to which the covered 

21 provision applies, a participant or beneficiary under22 takes or promises not to pursue, bring, join, litigate, 

23 or support any kind of individual, joint, class, rep24 resentative, or collective claim available under this 


pbinns on DSKJLVW7X2PROD with $$_JOB
4 

•S 4219 IS

1 section in any forum that, but for such covered pro2 vision, is of competent jurisdiction; 

3 ‘‘(D) no covered provision shall be valid or en4 forceable, if after a dispute to which the covered pro5 vision applies arises, a participant or beneficiary un6 dertakes or promises not to pursue, bring, join, liti7 gate, or support any kind of individual, joint, class, 

8 representative, or collective claim under this section 

9 in any forum that, but for such covered provision, is 

10 of competent jurisdiction, unless the covered provi11 sion meets the requirements of subparagraph (B); 

12 and 

13 ‘‘(E) no covered provision related to a plan 

14 other than a multiemployer plan shall be valid or en15 forceable that purports to confer discretionary au16 thority to any person with respect to benefit deter17 minations or interpretation of plan language, or to 

18 provide a standard of review of such determinations 

19 or interpretation by a reviewing court in an action 

20 brought under this section that would require any21 thing other than de novo review of such determina22 tions or interpretation. 

23 ‘‘(2) In this subsection— 

24 ‘‘(A) the term ‘covered provision’ means any 

25 document, instrument, or agreement related to a 


pbinns on DSKJLVW7X2PROD with $$_JOB
5 

•S 4219 IS

1 plan or plan benefit, regardless of whether such pro2 vision appears in a plan document or in a separate 

3 agreement; 

4 ‘‘(B) the term ‘predispute arbitration provision’ 

5 means a covered provision that requires a partici6 pant or beneficiary to arbitrate a dispute related to 

7 the plan or an amendment to the plan that had not 

8 yet arisen at the time such provision took effect; 

9 ‘‘(C) the term ‘postdispute arbitration provi10 sion’ means a covered provision that requires a par11 ticipant or beneficiary to arbitrate a dispute related 

12 to the plan or an amendment to the plan that arose 

13 before the time such provision took effect; and 

14 ‘‘(D) the term ‘retaliation’ means any action in 

15 violation of section 510. 

16 ‘‘(3)(A) Any dispute as to whether a covered provi17 sion that requires a participant or beneficiary to arbitrate 

18 a dispute related to a plan is valid and enforceable shall 

19 be determined by a court, rather than an arbitrator, re20 gardless of whether any contractual provision purports to 

21 delegate such determinations to the arbitrator and irre22 spective of whether the party resisting arbitration chal23 lenges the arbitration agreement specifically or in conjunc24 tion with other terms of the contract containing such 

25 agreement. 


pbinns on DSKJLVW7X2PROD with $$_JOB
6 

•S 4219 IS

1 ‘‘(B) For purposes of this subsection, a dispute shall 

2 be considered to arise only when a plaintiff has actual 

3 knowledge (within the meaning of such term in section 

4 413) of a breach or violation giving rise to a claim under 

5 this section.’’. 

6 (b) REGULATIONS.—The Secretary of Labor may 

7 promulgate such regulations as may be necessary to carry 

8 out the amendment made by subsection (a), including pro9 viding for the form and content of notices required pursu10 ant to such amendment. 

11 SEC. 3. PROHIBITION ON MANDATORY ARBITRATION 

12 CLAUSES, CLASS ACTION WAIVERS, REP13 RESENTATION WAIVERS, AND DISCRE14 TIONARY CLAUSES. 

15 Section 402 of the Employee Retirement Income Se16 curity Act of 1974 (29 U.S.C. 1102) is amended by adding 

17 at the end the following: 

18 ‘‘(d)(1) No covered person may— 

19 ‘‘(A) require participants or beneficiaries to 

20 agree to a predispute arbitration provision as a con21 dition for participation in, or receipt of benefits 

22 under, a plan; 

23 ‘‘(B) agree to a postdispute arbitration provi24 sion with a participant or beneficiary with respect to 

25 a plan or plan benefit unless the conditions of 


pbinns on DSKJLVW7X2PROD with $$_JOB
7 

•S 4219 IS

1 clauses (i) through (iv) of section 502(n)(1)(B) are 

2 satisfied with respect to such provision; or 

3 ‘‘(C) agree to any other covered provision with 

4 respect to a plan or plan benefit under any cir5 cumstances under which such provision would not be 

6 valid and enforceable under subparagraphs (C) 

7 through (E) section 502(n)(1). 

8 ‘‘(2) In this subsection— 

9 ‘‘(A) the term ‘covered person’ means— 

10 ‘‘(i) a plan; 

11 ‘‘(ii) a plan sponsor; 

12 ‘‘(iii) an employer; or 

13 ‘‘(iv) a person engaged by a plan for pur14 poses of administering or operating the plan; 

15 and 

16 ‘‘(B) the terms ‘covered provision’, ‘predispute 

17 arbitration provision’ and ‘postdispute arbitration 

18 provision’ have the meanings given such terms in 

19 section 502(n)(2).’’. 

20 SEC. 4. EFFECTIVE DATE. 

21 (a) IN GENERAL.—The amendments made by sec22 tions 2 and 3 shall take effect on the date of enactment 

23 of this Act and shall apply with respect to any dispute 

24 or claim that arises or accrues on or after such date, in25 cluding any dispute or claim to which a provision preVerDate Sep 11 2014 23:18 May 17, 2022 Jkt 000000 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4219.IS S4219

pbinns on DSKJLVW7X2PROD with $$_JOB
8 

•S 4219 IS

1 dating such date applies, regardless of whether plan docu2 ments have been updated in accordance with such amend3 ments. 

4 (b) ENFORCEMENT WITH RESPECT TO PLAN DOCU5 MENT UPDATES.—Notwithstanding subsection (a), no 

6 person shall be deemed to be in violation of such amend7 ments on account of plan documents that have not been 

8 updated in accordance with such amendments until after 

9 the beginning of the first plan year that begins on or after 

10 the date that is 1 year after the date of enactment of this 

11 Act, provided that such person acts in accordance with 

12 such amendments during the period in which the plan doc13 uments have not been updated. 

Æ 


pbinns on DSKJLVW7X2PROD with $$_JOB