I 

115TH CONGRESS 

2D SESSION H. R. 7109 

To prohibit forced arbitration in employment disputes, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 30, 2018 

Mr. NADLER (for himself, Mr. SCOTT of Virginia, Mr. CICILLINE, Mr. JOHNSON of Georgia, Ms. JAYAPAL, Mr. CUMMINGS, Ms. MAXINE WATERS of 

California, Ms. LOFGREN, Ms. JACKSON LEE, Mr. DEUTCH, Mr. 

JEFFRIES, Ms. BASS, Mr. GUTIE ́RREZ, Mr. SWALWELL of California, Mr. 

TAKANO, Ms. BONAMICI, Ms. WILSON of Florida, Ms. WASSERMAN

SCHULTZ, Ms. HANABUSA, Ms. NORTON, Mrs. NAPOLITANO, Ms. 

CLARKE of New York, Mr. RYAN of Ohio, Ms. SCHAKOWSKY, Mr. 

MEEKS, Mr. LOWENTHAL, Mr. VELA, Mr. COURTNEY, Ms. DELAURO, 

Mr. NORCROSS, Ms. KAPTUR, Mrs. WATSON COLEMAN, Mrs. DINGELL, 

Mr. DESAULNIER, Ms. BARRAGA ́N, Mr. HASTINGS, Ms. ROYBAL-ALLARD, 

Mr. LYNCH, Mr. SOTO, Ms. BROWNLEY of California, Ms. LEE, Mr. 

GOMEZ, Mrs. DAVIS of California, Ms. ESHOO, Ms. SHEA-PORTER, Mr. 

TONKO, Mr. GARAMENDI, Mr. GRIJALVA, Mr. PAYNE, Mr. DANNY K. 

DAVIS of Illinois, Mr. ELLISON, Mr. RASKIN, Mr. WELCH, Mr. BRENDAN

F. BOYLE of Pennsylvania, Mr. MCEACHIN, Mr. KENNEDY, Ms. SPEIER, 

Mr. CARSON of Indiana, and Mr. TED LIEU of California) introduced the 

following bill; which was referred to the Committee on the Judiciary, and 

in addition to the Committee on Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To prohibit forced arbitration in employment disputes, and 

for other purposes. 


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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 employees are currently forced to 

9 accept, as a condition of employment, contractual 

10 provisions that block their access to the courts or 

11 prohibit them from joining together with other em12 ployees to seek joint, class, or collective relief for vio13 lations of their rights. This has led to widespread 

14 nonenforcement of employees’ rights and has per15 mitted significant violations of those rights to con16 tinue unabated. 

17 (2) Most employees have little or no meaningful 

18 choice regarding whether to accept these provisions. 

19 Often, employees are not even aware that they have 

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

21 waived their right to join other employees in joint, 

22 class, or collective actions. 

23 (3) The Federal Arbitration Act (now enacted 

24 as chapter 1 of title 9, United States Code) was in25 tended to apply to disputes between commercial entiVerDate Sep 11 2014 21:10 Oct 30, 2018 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H7109.IH H7109

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1 ties of generally similar sophistication and bar2 gaining power. Despite this congressional intent, the 

3 Supreme Court of the United States has interpreted 

4 the Federal Arbitration Act so that it now extends 

5 to employment disputes. 

6 (4) The National Labor Relations Act (29 

7 U.S.C. 151 et seq.) protects employees’ right to en8 gage in concerted activities for the purpose of mu9 tual aid or protection. This was intended and long 

10 understood to encompass employees’ right to collec11 tively seek relief for violations of their workplace 

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

13 law and congressional intent, the Supreme Court of 

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

15 138 S. Ct. 1612 (2018), decided that employees may 

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

17 their right to collectively litigate employment actions. 

18 (5) Forced individual dispute resolution under19 mines employees’ rights and exacerbates the inequal20 ity of bargaining power between employees and em21 ployers because joining a joint, class, or collective ac22 tion is often the only way employees can afford to 

23 seek relief for violations of their rights. 


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1 (6) Employees who are forced to submit to indi2 vidual dispute resolution often seek no redress at all 

3 due to well-founded fear of retaliation. 

4 (7) Protecting the rights of employees to indi5 vidually or concertedly seek relief for violations of 

6 their labor rights through the justice system protects 

7 the public interest and safeguards commerce from 

8 injury. 

9 SEC. 3. PURPOSES. 

10 The purposes of this Act are to— 

11 (1) prohibit predispute arbitration agreements 

12 that require arbitration of employment disputes; 

13 (2) prohibit retaliation against employees for 

14 refusing to arbitrate employment disputes; 

15 (3) provide protections to ensure that 

16 postdispute arbitration agreements are truly vol17 untary and with the informed consent of employees; 

18 and 

19 (4) amend the National Labor Relations Act to 

20 prohibit agreements and practices that interfere with 

21 employees’ right to collectively litigate employment 

22 disputes. 

23 SEC. 4. ARBITRATION OF EMPLOYMENT DISPUTES. 

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

25 is amended by adding at the end the following: 


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1 ‘‘CHAPTER 4—ARBITRATION OF 

2 EMPLOYMENT DISPUTES 

‘‘Sec. 

‘‘401. Definitions. 

‘‘402. Validity and enforceability. 

3 ‘‘§ 401. Definitions 

4 ‘‘In this chapter— 

5 ‘‘(1) the terms ‘commerce’, ‘employee’, and ‘em6 ployer’ have the meanings given the terms in section 

7 3 of the Fair Labor Standards Act of 1938 (29 

8 U.S.C. 203); 

9 ‘‘(2) the term ‘employment dispute’ means a 

10 dispute between an employer and an employee aris11 ing from or relating to the employment of the em12 ployee, and includes disputes that arise under com13 mon law or from the alleged violation of the Con14 stitution of the United States, the constitution of a 

15 State, or a Federal, State, territorial, county, or mu16 nicipal statute; 

17 ‘‘(3) the term ‘predispute arbitration agree18 ment’ means any agreement to arbitrate a dispute 

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

20 of the agreement; and 

21 ‘‘(4) the term ‘postdispute arbitration agree22 ment’ means any agreement to arbitrate a dispute 

23 that arose before the time of the making of the 

24 agreement. 


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1 ‘‘§ 402. Validity and enforceability 

2 ‘‘(a) IN GENERAL.—Notwithstanding any other chap3 ter of this title— 

4 ‘‘(1) no predispute arbitration agreement shall 

5 be valid or enforceable if it requires arbitration of an 

6 employment dispute; 

7 ‘‘(2) no postdispute arbitration agreement that 

8 requires arbitration of an employment dispute shall 

9 be valid or enforceable unless— 

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

11 the employer, obtained by coercion or threat of 

12 adverse action, or made a condition of employ13 ment or any employment-related privilege or 

14 benefit; 

15 ‘‘(B) each employee entering into the 

16 agreement was informed in writing using suffi17 ciently plain language likely to be understood by 

18 the average employee of— 

19 ‘‘(i) the right of the employee under 

20 paragraph (3) to refuse to enter the agree21 ment without retaliation; and 

22 ‘‘(ii) the protections under section 

23 8(a)(6) of the National Labor Relations 

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

25 ‘‘(C) each employee entering into the 

26 agreement entered the agreement after a waitVerDate Sep 11 2014 21:10 Oct 30, 2018 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7109.IH H7109

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1 ing period of not fewer than 45 days, beginning 

2 on the date on which the employee was provided 

3 both the final text of the agreement and the 

4 disclosures required under subparagraph (B); 

5 and 

6 ‘‘(D) each employee entering into the 

7 agreement affirmatively consented to the agree8 ment in writing; and 

9 ‘‘(3) no employer may retaliate or threaten to 

10 retaliate against an employee for refusing to enter 

11 into an agreement that provides for arbitration of an 

12 employment dispute. 

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

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

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

16 for the applicable employment dispute shall be tolled. 

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

18 reason of a violation of subsection (a)(3) may bring a civil 

19 action in the appropriate district court of the United 

20 States against the employer within 2 years of the violation, 

21 or within 3 years if such violation is willful. Relief granted 

22 in such an action shall include a reasonable attorney’s fee, 

23 other reasonable costs associated with maintaining the ac24 tion, and any appropriate relief authorized by section 

25 706(g) of the Civil Rights Act of 1964 (42 U.S.C. 2000e– 


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1 5(g)) or by section 1977A(b) of the Revised Statutes (42 

2 U.S.C. 1981a(b)). 

3 ‘‘(d) APPLICABILITY.— 

4 ‘‘(1) IN GENERAL.—This chapter applies to em5 ployers and employees engaged in activity affecting 

6 commerce to the fullest extent permitted by the 

7 United States Constitution. An issue as to whether 

8 this chapter applies to an arbitration agreement 

9 shall be determined under Federal law. The applica10 bility of this chapter to an agreement to arbitrate 

11 and the validity and enforceability of an agreement 

12 to which this chapter applies shall be determined by 

13 a court, rather than an arbitrator, regardless of 

14 whether any contractual provision delegates such 

15 matters to the arbitrator and irrespective of whether 

16 the party resisting arbitration challenges the arbitra17 tion agreement specifically or in conjunction with 

18 other terms of the contract containing such agree19 ment. 

20 ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.— 

21 Nothing in this chapter shall apply to any arbitra22 tion provision in a contract between an employer and 

23 a labor organization, except that no such arbitration 

24 provision shall have the effect of waiving the right 

25 of an employee to seek judicial enforcement of a 


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1 right arising under a provision of the Constitution of 

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

3 Federal or State statute, or public policy arising 

4 therefrom.’’. 

5 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

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

7 Code is amended— 

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

9 and all that follows through ‘‘interstate com10 merce’’; 

11 (B) in section 2, by inserting ‘‘or as other12 wise provided in chapter 4’’ before the period at 

13 the end; 

14 (C) in section 208— 

15 (i) in the section heading, by striking 

16 ‘‘Chapter 1; residual application’’ 

17 and inserting ‘‘Application’’; and 

18 (ii) by adding at the end the fol19 lowing: ‘‘This chapter applies to the extent 

20 that this chapter is not in conflict with 

21 chapter 4.’’; and 

22 (D) in section 307— 

23 (i) in the section heading, by striking 

24 ‘‘Chapter 1; residual application’’ 

25 and inserting ‘‘Application’’; and 


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1 (ii) by adding at the end the fol2 lowing: ‘‘This chapter applies to the extent 

3 that this chapter is not in conflict with 

4 chapter 4.’’. 

5 (2) TABLE OF SECTIONS.— 

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

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

8 amended by striking the item relating to section 

9 208 and inserting the following: 

‘‘208. Application.’’. 

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

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

12 amended by striking the item relating to section 

13 307 and inserting the following: 

‘‘307. Application.’’. 

14 (3) TABLE OF CHAPTERS.—The table of chap15 ters for title 9, United States Code, is amended by 

16 adding at the end the following: 

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

17 SEC. 5. PROTECTION OF CONCERTED ACTIVITY. 

18 Section 8(a) of the National Labor Relations Act (29 

19 U.S.C. 158(a)) is amended— 

20 (1) in paragraph (5), by striking the period at 

21 the end and inserting ‘‘; and’’; and 

22 (2) by adding at the end the following: 


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1 ‘‘(6)(A) to enter into or attempt to enforce any 

2 agreement, express or implied, whereby prior to a 

3 dispute to which the agreement applies, an employee 

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

5 litigate, or support any kind of joint, class, or collec6 tive legal action arising from or relating to the em7 ployment of such employee in any forum that, but 

8 for such agreement, is of competent jurisdiction; or 

9 ‘‘(B) to retaliate or threaten to retaliate against 

10 an employee for refusing to undertake or promise 

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

12 kind of joint, class, or collective legal action arising 

13 from or relating to the employment of such em14 ployee: 

15 Provided, That any agreement that violates this 

16 paragraph or results from a violation of this para17 graph shall be to such extent unenforceable and 

18 void: Provided further, That this paragraph shall not 

19 apply to any agreement embodied in or expressly 

20 permitted by a contract between an employer and a 

21 labor organization.’’. 

22 SEC. 6. EFFECTIVE DATE. 

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

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

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


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1 on or after such date, including any dispute or claim to 

2 which an agreement predating such date applies. 

Æ 


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