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Bills Introduced to End Forced Arbitration

Posted March 15, 2019

By Jonathan A. Karon

The unfairness of forced arbitration agreements has been a recurring topic in this blog.  At a press briefing on February 28th, members of Congress rolled out a number of bills that would begin to limit the use of such agreements.  Two have already been introduced:

The Forced Arbitration Injustice Repeal (FAIR) Act (H.R. 1423/S. 610) ending forced arbitration in consumer, worker, civil rights and anti-trust cases; and

The Ending Forced Arbitration of Sexual Harassment Act to end forced in arbitration in sexual harassment and discrimination cases.

The FAIR act presently has 160 cosponsors in the House and 30 cosponsors in the Senate.  The Ending Forced Arbitration of Sexual Harassment Act was introduced by Rep. Cheri Bustos (D. Ill.) who spoke at the briefing, along with former Fox News anchor Gretchen Carlson, who emphasized the need to end the silence around workplace sexual harassment.

At least three other bills will also be introduced to limit forced arbitration:

The Restoring Justice for Workers Act ending forced arbitration in employment;

The Justice for Servicemembers Act to protect the rights of servicemembers and veterans; and

An as-yet unnamed bill to end forced arbitration in nursing home agreements.

Unfortunately, powerful corporate interests benefit from a private system of rigged dispute resolution.  As a result, prior legislation limiting forced arbitration has been unable to successfully make its way through Congress.  There is some cause for optimism, however, that increased public awareness is beginning to have an impact.  For example, recently Google agreed to end the use of forced arbitration agreements in its employment contracts following a protest last November in which 20,000 employees and contractors walked off the job to protest its response to sexual harassment claims.  Similarly, other companies, including Airbnb, Facebook, Lyft, Microsoft and Uber are no longer requiring employees to arbitrate sexual harassment claims.

A recent poll by Hart Research Associates found that an overwhelming majority (84%) of Americans support ending forced arbitration of consumer and employment claims.  Surprisingly, this cut across party lines, with 87% of Republican respondents and 84% of Democratic respondents favoring such limits.

At the briefing, Linda Lipsen, CEO of the American Association for Justice (formerly known as the Association of Trial Lawyers of America) reminded the audience of the harms of forced arbitration agreements. “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.”

If you would like to keep your right to have your disputes decided in public, by a neutral judge and jury, contact your Senators and Representative and ask them to support these bills.

[A shout-out to Law Clerk Abbie Rosen for her valuable research assistance.]

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