A new “Epic” measure in Congress aims to end arbitration of employment claims

This week, U.S. Senator Patty Murray (D-WA) and U.S. Representatives Robert C. “Bobby” Scott (D-VA-03) and Jerrold Nadler (D-NY-12) reintroduced the Restoring Justice for Workers Act, which Ms. Murray describes as legislation to end forced arbitration clauses and protect workers’ ability to pursue work-related claims in court.

If successful, the measure would undo the 2018 Supreme Court decision in Epic Systems Corp. v. Lewis, where the Court concluded that the National Labor Relations Act does not override an agreement between a company and its worker to arbitrate employment-related claims on an individual, non-class basis.

Additionally, the bill would (1) prohibit pre-dispute arbitration agreements that require arbitration of work disputes; (2) prohibit retaliation against workers for refusing to arbitrate work disputes; (3) provide protections to ensure that post-dispute arbitration agreements are genuinely voluntary and with the informed consent of workers; and (4) amend the National Labor Relations Act to prohibit agreements and practices that interfere with employees’ right to engage in concerted activity regarding work disputes.

Without it, your arbitration agreements would remain enforceable and deny employees access to a courtroom and a jury, whether alone or with other employees (e.g., to sue together as a class on a wage-and-hour claim). And there’s nothing the National Labor Relations Board or your employees can do about it.

The Restoring Justice for Workers Act was first introduced in 2019 and made it as far as Committee. It suffered the same fate when reintroduced in 2021. This go-round has support from 17 Senate co-sponsors (all Democrats).

Well, come to think of it, there is something your employees can do.

Even if the bill doesn’t pass this time (spoiler alert: it won’t), your employees who sign arbitration agreements can still sue in court if they believe (and can convince a judge) that your agreements aren’t well-crafted.

Your mileage may vary, but generally, arbitration agreements should distinguish litigation from arbitration (explaining the former), clarify that employees must arbitrate employment-related claims, and inform employees they have no right to pursue claims in court. Class and collective action waivers should be explicit, too.

So, if it’s been a while since your business updated its arbitration agreements to ensure they remain (or ever were) compliant, consult an employment law attorney. I know one who writes The Employer Handbook.