SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Employee and Retiree 
Access to Justice Act of 2022’’. 
SEC. 2. UNENFORCEABLE ARBITRATION CLAUSES, CLASS 
ACTION WAIVERS, REPRESENTATION WAIV-
ERS, AND DISCRETIONARY CLAUSES. 
(a) IN GENERAL.—Section 502 of the Employee Re-
tirement Income Security Act of 1974 (29 U.S.C. 1132) 
is amended by adding at the end the following: 
‘‘(n)(1) In any civil action brought by, or on behalf 
of, a participant or beneficiary pursuant to this section 
or with respect to a common law claim involving a plan 
or plan benefit, notwithstanding any other provision of 
law— 
‘‘(A) no predispute arbitration provision shall 
be valid or enforceable if it requires arbitration of a 
matter related to a claim brought under this section; 
‘‘(B) no postdispute arbitration provision shall 
be valid or enforceable unless— 
‘‘(i) the provision was not required by any 
person, obtained by coercion or threat of ad-
verse action, or made a condition of partici-
pating in a plan, receiving benefits under a 
plan, or receiving any other employment, work, 
or any employment-related or work-related 
privilege or benefit; 
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‘‘(ii) each participant or beneficiary agree-
ing to the provision was informed, through a 
paper notice, in a manner reasonably calculated 
to be understood by the average plan partici-
pant, of the right of the participant or bene-
ficiary under subparagraph (C) to refuse to 
agree to the provision without retaliation or 
threat of retaliation; 
‘‘(iii) each participant or beneficiary agree-
ing to the provision so agreed after a waiting 
period of not fewer than 45 days, beginning on 
the date on which the participant or beneficiary 
was provided both the final text of the provision 
and the disclosures required under clause (ii); 
and 
‘‘(iv) each participant or beneficiary agree-
ing to the provision affirmatively consented to 
the provision in writing; 
‘‘(C) no covered provision shall be valid or en-
forceable, if prior to a dispute to which the covered 
provision applies, a participant or beneficiary under-
takes or promises not to pursue, bring, join, litigate, 
or support any kind of individual, joint, class, rep-
resentative, or collective claim available under this 
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section in any forum that, but for such covered pro-
vision, is of competent jurisdiction; 
‘‘(D) no covered provision shall be valid or en-
forceable, if after a dispute to which the covered pro-
vision applies arises, a participant or beneficiary un-
dertakes or promises not to pursue, bring, join, liti-
gate, or support any kind of individual, joint, class, 
representative, or collective claim under this section 
in any forum that, but for such covered provision, is 
of competent jurisdiction, unless the covered provi-
sion meets the requirements of subparagraph (B); 
and 
‘‘(E) no covered provision related to a plan 
other than a multiemployer plan shall be valid or en-
forceable that purports to confer discretionary au-
thority to any person with respect to benefit deter-
minations or interpretation of plan language, or to 
provide a standard of review of such determinations 
or interpretation by a reviewing court in an action 
brought under this section that would require any-
thing other than de novo review of such determina-
tions or interpretation. 
‘‘(2) In this subsection— 
‘‘(A) the term ‘covered provision’ means any 
document, instrument, or agreement related to a 
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plan or plan benefit, regardless of whether such pro-
vision appears in a plan document or in a separate 
agreement; 
‘‘(B) the term ‘predispute arbitration provision’ 
means a covered provision that requires a partici-
pant or beneficiary to arbitrate a dispute related to 
the plan or an amendment to the plan that had not 
yet arisen at the time such provision took effect; 
‘‘(C) the term ‘postdispute arbitration provi-
sion’ means a covered provision that requires a par-
ticipant or beneficiary to arbitrate a dispute related 
to the plan or an amendment to the plan that arose 
before the time such provision took effect; and 
‘‘(D) the term ‘retaliation’ means any action in 
violation of section 510. 
‘‘(3)(A) Any dispute as to whether a covered provi-
sion that requires a participant or beneficiary to arbitrate 
a dispute related to a plan is valid and enforceable shall 
be determined by a court, rather than an arbitrator, re-
gardless of whether any contractual provision purports to 
delegate such determinations to the arbitrator and irre-
spective of whether the party resisting arbitration chal-
lenges the arbitration agreement specifically or in conjunc-
tion with other terms of the contract containing such 
agreement. 
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‘‘(B) For purposes of this subsection, a dispute shall 
be considered to arise only when a plaintiff has actual 
knowledge (within the meaning of such term in section 
413) of a breach or violation giving rise to a claim under 
this section.’’. 
(b) REGULATIONS.—The Secretary of Labor may 
promulgate such regulations as may be necessary to carry 
out the amendment made by subsection (a), including pro-
viding for the form and content of notices required pursu-
ant to such amendment. 
SEC. 
3. 
PROHIBITION 
ON 
MANDATORY 
ARBITRATION 
CLAUSES, 
CLASS 
ACTION 
WAIVERS, 
REP-
RESENTATION 
WAIVERS, 
AND 
DISCRE-
TIONARY CLAUSES. 
Section 402 of the Employee Retirement Income Se-
curity Act of 1974 (29 U.S.C. 1102) is amended by adding 
at the end the following: 
‘‘(d)(1) No covered person may— 
‘‘(A) require participants or beneficiaries to 
agree to a predispute arbitration provision as a con-
dition for participation in, or receipt of benefits 
under, a plan; 
‘‘(B) agree to a postdispute arbitration provi-
sion with a participant or beneficiary with respect to 
a plan or plan benefit unless the conditions of 
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clauses (i) through (iv) of section 502(n)(1)(B) are 
satisfied with respect to such provision; or 
‘‘(C) agree to any other covered provision with 
respect to a plan or plan benefit under any cir-
cumstances under which such provision would not be 
valid and enforceable under subparagraphs (C) 
through (E) of section 502(n)(1). 
‘‘(2) In this subsection— 
‘‘(A) the term ‘covered person’ means— 
‘‘(i) a plan; 
‘‘(ii) a plan sponsor; 
‘‘(iii) an employer; or 
‘‘(iv) a person engaged by a plan for pur-
poses of administering or operating the plan; 
and 
‘‘(B) the terms ‘covered provision’, ‘predispute 
arbitration provision’ and ‘postdispute arbitration 
provision’ have the meanings given such terms in 
section 502(n)(2).’’. 
SEC. 4. EFFECTIVE DATE. 
(a) IN GENERAL.—The amendments made by sec-
tions 2 and 3 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, in-
cluding any dispute or claim to which a provision pre-
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dating such date applies, regardless of whether plan docu-
ments have been updated in accordance with such amend-
ments. 
(b) ENFORCEMENT WITH RESPECT TO PLAN DOCU-
MENT UPDATES.—Notwithstanding subsection (a), no 
person shall be deemed to be in violation of such amend-
ments on account of plan documents that have not been 
updated in accordance with such amendments until after 
the beginning of the first plan year that begins on or after 
the date that is 1 year after the date of enactment of this 
Act, provided that such person acts in accordance with 
such amendments during the period in which the plan doc-
uments have not been updated. 
Æ 
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