Prohibition on mandatory arbitration and protection of concerted legal action

(a) Protection of concerted activity (1) Agreements Section 8(e) of the National Labor Relations Act (29 U.S.C. 158(e)) is amended to read as follows: (e) Notwithstanding chapter 1 of title 9, United States Code (commonly known as the Federal Arbitration Act), or any other provision of law, it shall be an unfair labor practice under subsection (a)(1) for any employer— (1) to enter into or attempt to enforce any agreement, express or implied, whereby prior to or after a dispute to which the agreement applies, an employee undertakes or promises not to pursue, bring, join, litigate, or support any kind of joint, class, or collective claim arising from or relating to the employment of such employee in any forum that, but for such agreement, is of competent jurisdiction; (2) to coerce an employee into undertaking or promising not to pursue, bring, join, litigate, or support any kind of joint, class, or collective claim arising from or relating to the employment of such employee; or (3) to retaliate or threaten to retaliate against an employee for refusing to undertake or promise not to pursue, bring, join, litigate, or support any kind of joint, class, or collective claim arising from or relating to the employment of such employee: Provided, That any agreement that violates this subsection or results from a violation of this subsection shall be to such extent unenforceable and void: Provided further, That this subsection shall not apply to any agreement embodied in or expressly permitted by a contract between an employer and a labor organization.. (2) Certain postdispute arbitration agreements Section 10(b) of the National Labor Relations Act (29 U.S.C. 160(b)) is amended by striking discharge and inserting discharge, or unless the person aggrieved thereby is alleging a violation of section 8(e) whose charge involves a postdispute arbitration agreement that meets the requirements under section 502(a)(2) of title 9, United States Code, in which event the six-month period shall be computed from the day the waiting period described in subparagraph (C) of such section ends. (b) Arbitration of work disputes (1) In general Title 9, United States Code, is amended by adding at the end the following: 5 Arbitration of Work Disputes Sec. 501. Definitions. 502. Validity and enforceability. 501. Definitions In this chapter: (1) Commerce; employee; employer The terms commerce, employee, and employer have the meanings given the terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203). (2) Covered entity The term covered entity means— (A) an employer; or (B) an individual or entity that is not acting as an employer and engages the services of a worker. (3) Presdispute arbitration agreement The term predispute arbitration agreement has the meaning given the term in section 401. (4) Postdispute arbitration agreement The term postdispute arbitration agreement means any agreement to arbitrate a dispute that arose before the time of the making of the agreement. (5) Worker The term worker means— (A) an employee engaged in an activity affecting commerce; or (B) an individual, engaged in an activity affecting commerce, who is engaged by a covered entity to perform services or work as an independent contractor (regardless of the label or classification assigned or used by the covered entity). (6) Work dispute The term work dispute — (A) means a dispute between one or more workers (or their authorized representatives) and a covered entity arising out of or related to the work relationship or prospective work relationship between the workers and the covered entity; and (B) includes— (i) a dispute regarding the terms of, payment for, advertising of, recruitment of, referring of, arranging for, or discipline or discharge in connection with work performed in connection with such work relationship; (ii) a dispute arising under any law referred to or described in section 62(e) of the Internal Revenue Code of 1986, including any part of such a law not explicitly referenced in such section that relates to protecting individuals on a basis that is protected under a law referred to or described in such section; and (iii) a dispute in which an individual or individuals seek certification— (I) as a class under rule 23 of the Federal Rules of Civil Procedure; (II) as a collective action under section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)); or (III) under a comparable rule or provision of State law. 502. No validity or enforceability (a) In general Notwithstanding any other provision of this title— (1) no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of a work dispute; (2) no postdispute arbitration agreement that requires arbitration of a work dispute shall be valid or enforceable unless— (A) the agreement was not required by the covered entity, obtained by coercion or threat of adverse action, or made a condition of employment, work, or any employment-related or work-related privilege or benefit; (B) each worker entering into the agreement was informed in writing using sufficiently plain language likely to be understood by the average worker of— (i) the right of the worker under paragraph (3) to refuse to enter the agreement without retaliation; and (ii) as applicable, the protections under section 8(a)(6) of the National Labor Relations Act (29 U.S.C. 158(a)(6)); (C) each worker entering into the agreement entered the agreement after a waiting period of not fewer than 45 days, beginning on the date on which the employee was provided both the final text of the agreement and the disclosures required under subparagraph (B); and (D) each worker entering into the agreement affirmatively consented to the agreement in writing; and (3) no covered entity may retaliate or threaten to retaliate against a worker for refusing to enter into an agreement that provides for arbitration of a work dispute. (b) Statute of limitations The statute of limitations for bringing an action that arises from or forms the basis for the applicable work dispute shall be tolled during the waiting period described in subsection (a)(2)(C). (c) Civil action Any person who is injured by reason of a violation of subsection (a)(3) may bring a civil action in the appropriate district court of the United States against the covered entity within 2 years of the violation, or within 3 years if such violation is willful. Relief granted in such an action shall include a reasonable attorney’s fee, other reasonable costs associated with maintaining the action, and any appropriate relief authorized by section 706(g) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–5(g)) or by section 1977A(b) of the Revised Statutes (42 U.S.C. 1981a(b)). (d) Applicability (1) In general This chapter applies to covered entities and workers to the fullest extent permitted by the Constitution of the United States, including the work of persons engaged in domestic service in households, as described in section 2(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 202(a)). An issue as to whether this chapter applies to an arbitration agreement shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies 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. (2) Collective bargaining agreements Nothing in this chapter shall apply to any arbitration provision in a contract between a covered entity and a labor organization, except that no such arbitration provision shall have the effect of waiving the right of a worker to seek judicial enforcement of a right arising under a provision of the Constitution of the United States, the constitution of a State, or a Federal or State statute, or public policy arising therefrom.. (2) Technical and conforming amendments (A) In general Title 9 of the United States Code is amended— (i) in section 1, by striking of seamen, and all that follows through interstate commerce; (ii) in section 2, by inserting or 5 before the period at the end; (iii) in section 208, in the second sentence, by inserting or 5 before the period at the end; and (iv) in section 307, in the second sentence, by inserting or 5 before the period at the end; (B) Table of chapters The table of chapters for title 9, United States Code, is amended by adding at the end the following: 5. Arbitration of work disputes 501.. (c) Effective date This section, and the amendments made by this section, 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 an agreement predating such date applies.