Hunton Employment & Labor Perspectives

Before the lame duck period of the 115^th Congress, Rep. Jerrold Nadler (D-NY) and a group of 58 Democrat co-sponsors, introduced the Restoring Justice for Workers Act (H.R. 7109), which would prohibit  employers from requiring employees to sign mandatory arbitration agreements.

The proposed legislation would amend the National Labor Relations Act to prohibit agreements that restrict employees’ right to collectively litigate employment claims under a new “Section 8(a)(6).”  That new section would make it an unfair labor practice to “enter into or attempt to enforce any [pre-dispute] agreement” that would prohibit class or collective actions relating to employment, or to retaliate against any employee for refusing to promise not to pursue a claim.

In effect, the proposed legislation would prohibit class action waivers in all pre-dispute arbitration agreements covering employment claims and would  reverse the Supreme Court’s May 21 Epic Systems v. Lewis opinion, 138 S. Ct. 1612 (2018), which held that arbitration agreements with class and collective action waivers do not violate the NLRA.  (We addressed that ruling, and its impact, in several prior blog posts).

It appears unlikely that this bill will be passed by the Republican-controlled Senate or signed into law by President Trump.  However, it serves as a preview to the type of legislation that Democrats are likely to try to pass in future years if they gain control of the Senate and/or the White House. We will continue to follow this proposed legislation and provide updates in this space.