March 14, 2019, Trial News
Congress announces new bills to end forced arbitration
At a Feb. 28 press briefing, members of Congress announced a package of bills being introduced to end forced arbitration and restore access to the courts for workers, nursing home residents, servicemembers, and others. Joined by members of the U.S. Senate and House of Representatives, 12 people from across the country shared stories of how forced arbitration impacted them and called on Congress to ensure that everyone’s Seventh Amendment rights are protected.
At a Feb. 28 press briefing, members of Congress announced a package of bills being introduced to end forced arbitration and restore access to the courts for workers, nursing home residents, servicemembers, and others. Joined by members of the U.S. Senate and House of Representatives, 12 people from across the country shared stories of how forced arbitration impacted them and called on Congress to ensure that everyone’s Seventh Amendment rights are protected. The briefing also featured a recap of recent research conducted by Hart Research Associates that demonstrated widespread, bipartisan support among Americans for eliminating forced arbitration.
At the time of publication, the following bills had been introduced:
- The Forced Arbitration Injustice Repeal (FAIR) Act (H.R. 1423/S. 610) to end forced arbitration in consumer, worker, civil rights, and antitrust disputes.
- The Ending Forced Arbitration of Sexual Harassment Act to end forced arbitration in disputes involving sexual harassment or discrimination.
Sen. Richard Blumenthal (D-Conn.), a sponsor of the FAIR Act, said, “No longer should people be forced to suffer in silence, to endure the unfairness of this kind of rigged system, stripped of their rights and forced to go before a non-neutral arbiter.” The FAIR Act, introduced by Sen. Blumenthal and Rep. Hank Johnson (D-Ga.), would ban pre-dispute forced arbitration but allow people to agree to arbitration after a dispute arises. It currently has more than 160 cosponsors in the House and more than 30 cosponsors in the Senate. The legislation also is intended to undo the restrictions that the U.S. Supreme Court’s 2018 ruling in Epic Systems Corp. v. Lewis placed on employees’ rights.
The Ending Forced Arbitration of Sexual Harassment Act would allow survivors to discuss their cases publicly and help prevent harassers from being shielded by their companies and the secrecy of forced arbitration. Rep. Cheri Bustos (D.-Ill.), who introduced the bill, said, “The message that I’d like to deliver loudly and clearly to every CEO in this country, to every business leader, is to end forced arbitration now.” Former Fox News anchor Gretchen Carlson also spoke in support of the bill, emphasizing the need to end the silence surrounding workplace sexual harassment.
At the time of publication, several other new bills had been announced:
- The Restoring Justice for Workers Act to end forced arbitration in employment disputes and protect enforcement of the National Labor Relations Act.
- The Justice for Servicemembers Act to ensure that the rights of servicemembers and veterans are enforced under the Uniform Service Employment and Reemployment Rights Act and the Servicemember Civil Relief Act.
- A bill still to be named that would end the use of forced arbitration in nursing home agreements.
People who shared their personal stories at the briefing in support of the legislation included a husband and wife fired from their jobs after the wife complained of racial discrimination, a woman sexually assaulted at a massage parlor, Chipotle employees who were not being paid for time they were required to work off-the-clock, and a U.S. Navy reservist who was fired when he was deployed overseas.
Glenda Perez, who was fired after reporting racial discrimination at her job and was forced to arbitrate her claims against her employer, said, “Our story could easily be yours, but you would never know because forced arbitration requires silence and favors corporations.”
Tanuja Gupta, a Google employee who helped organize a walkout last November to protest forced arbitration in the workplace, said, “We watched as some companies tried to create policies in a more surgical fashion, carving only a narrow category of cases where justice might be received. But workers continued to beat the drum of intersectionality and highlight the root cause of all inequity: the structural imbalance of power. And slowly, some companies started to relent, rolling out blanket policies that eliminated forced arbitration.”
In recent months, several major corporations have announced that they are removing forced arbitration clauses from their employment contracts. Google and Vox Media have removed these clauses altogether, while other companies such as Airbnb, Facebook, Lyft, Microsoft, and Uber no longer require employees to arbitrate sexual harassment and misconduct complaints.
A majority of Americans support these changes, the Hart survey found—regardless of political ideology. Eighty-four percent of respondents said they would support federal legislation to end forced arbitration for consumers and employees, with 87 percent of Republicans and 83 percent of Democrats in favor. Respondents also were largely opposed to two main facets of arbitration: that the company typically selects the arbitrator and that consumers do not have a choice between arbitration or going to court. Sixty-seven percent of respondents said they would rather have their claims heard by a judge or jury.
“Forced arbitration clauses buried in the fine print hurt everyone,” said AAJ CEO Linda Lipsen. “If corporations know they won’t ever be held publicly responsible, our civil rights, as well as our public health and safety are at risk, from the cars we drive, to the jobs we take, and the food we eat. That’s what makes this legislation so important, and I commend the advocates and members of Congress who stood up to demand action.”