Title: Employee and Retiree Access to Justice Act of 2022
Policy area: Labor and Employment

Summary:
Employee and Retiree Access to Justice Act of 2022
This bill prohibits employers from including certain mandatory arbitration clauses, class action waivers, representation waivers, or discretionary clauses in employee benefit plans. It also prohibits these provisions from being enforced with respect to claims brought by plan participants or beneficiaries.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4219 Introduced in Senate (IS)]

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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.

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

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 WAIVERS, AND DISCRETIONARY CLAUSES.

    (a) In General.--Section 502 of the Employee Retirement 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 adverse action, or 
                made a condition of participating in a plan, receiving 
                benefits under a plan, or receiving any other 
                employment, work, or any employment-related or work-
                related privilege or benefit;
                    ``(ii) each participant or beneficiary agreeing to 
                the provision was informed, through a paper notice, in 
                a manner reasonably calculated to be understood by the 
                average plan participant, of the right of the 
                participant or beneficiary under subparagraph (C) to 
                refuse to agree to the provision without retaliation or 
                threat of retaliation;
                    ``(iii) each participant or beneficiary agreeing 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 agreeing to 
                the provision affirmatively consented to the provision 
                in writing;
            ``(C) no covered provision shall be valid or enforceable, 
        if prior to a dispute to which the covered provision applies, a 
        participant or beneficiary undertakes or promises not to 
        pursue, bring, join, litigate, or support any kind of 
        individual, joint, class, representative, or collective claim 
        available under this section in any forum that, but for such 
        covered provision, is of competent jurisdiction;
            ``(D) no covered provision shall be valid or enforceable, 
        if after a dispute to which the covered provision applies 
        arises, a participant or beneficiary undertakes or promises not 
        to pursue, bring, join, litigate, 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 
        provision meets the requirements of subparagraph (B); and
            ``(E) no covered provision related to a plan other than a 
        multiemployer plan shall be valid or enforceable that purports 
        to confer discretionary authority to any person with respect to 
        benefit determinations 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 anything other than de novo 
        review of such determinations or interpretation.
    ``(2) In this subsection--
            ``(A) the term `covered provision' means any document, 
        instrument, or agreement related to a plan or plan benefit, 
        regardless of whether such provision appears in a plan document 
        or in a separate agreement;
            ``(B) the term `predispute arbitration provision' means a 
        covered provision that requires a participant 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 provision' means a 
        covered provision that requires a participant 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 provision 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, regardless of whether any contractual provision 
purports to delegate such determinations to the arbitrator and 
irrespective of whether the party resisting arbitration challenges the 
arbitration agreement specifically or in conjunction with other terms 
of the contract containing such agreement.
    ``(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 providing for the form and content of notices 
required pursuant to such amendment.

SEC. 3. PROHIBITION ON MANDATORY ARBITRATION CLAUSES, CLASS ACTION 
              WAIVERS, REPRESENTATION WAIVERS, AND DISCRETIONARY 
              CLAUSES.

    Section 402 of the Employee Retirement Income Security 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 condition for 
        participation in, or receipt of benefits under, a plan;
            ``(B) agree to a postdispute arbitration provision with a 
        participant or beneficiary with respect to a plan or plan 
        benefit unless the conditions of 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 circumstances under which such 
        provision would not be valid and enforceable under 
        subparagraphs (C) through (E) 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 purposes 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 sections 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, including any dispute or claim to which a provision predating 
such date applies, regardless of whether plan documents have been 
updated in accordance with such amendments.
    (b) Enforcement With Respect to Plan Document Updates.--
Notwithstanding subsection (a), no person shall be deemed to be in 
violation of such amendments 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 documents have not been updated.
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