WASHINGTON, D.C. — When U.S. Supreme Court Associate Justice Ruth Bader Ginsburg wrote her dissent concerning the High Court's decision supporting mandatory arbitration for Epic Systems Corp. v. Lewis, she called for "Congressional correction." Today, lawmakers delivered.
Sen. Richard Blumenthal, D-Conn., and Rep. Hank Johnson, D-Ga., announced the introduction of the Forced Arbitration Injustice Repeal (FAIR) Act late Thursday morning in the U.S. Capitol, standing alongside other democratic lawmakers and several people who identified themselves as victims of forced arbitration. "One of the systems that is truly rigged against consumers and workers is our current system of forced arbitration," Blumenthal said. "Forced arbitration is unfair, unjust and un-American."
The bill would prevent forced arbitration as a result of an agreement before a dispute occurs, allowing employees or consumers to choose arbitration at their will, Blumenthal said. "It's time to restore the rule of law," Johnson added. "Just like big business wins in the Supreme Court, they also win in arbitration proceedings."
Representatives also said they would introduce or reintroduce other measures that would knock arbitration, including the Ending Forced Arbitration of Sexual Harassment Act, the Restoring Justice for Workers Act, the Justice for Service Members Act and the Fairness in Nursing Home Arbitration Act.
The Restoring Justice for Workers Act would effectively undo the Supreme Court's decision in Epic, according to Rep. Bobby Scott, D-Va.. In Epic, the High Court upheld an employer's right to require that workers arbitrate disputes on an individual basis and waive their rights to class or collective actions in a 5-4, party-line ruling. The bill, in overturning Epic, would prohibit employers from requiring employees to accept arbitration terms, Scott said.
After the Supreme Court handed down its Epic ruling, experts urged employers to proceed with caution when deciding whether to adopt arbitration policies. Some attorneys warned business leaders to consider their litigation claim activity — a few lawsuits each year may not necessitate company-wide, mandatory arbitration agreements. Others warned the ruling would have the unintended effect of strengthens support for bills like those introduced Thursday.
Legislation aside, companies are facing pressure — in many cases, from their own employees — to end mandatory arbitration. Multiple speakers announcing the bills referenced Google's recent move to eliminate the use of forced arbitration agreements for current and future employees, a change scheduled to take effect March 21. The change will apply to American and international employees.
The Google news followed Twitter- and Instagram-based campaigns highlighting the company's use of arbitration; the campaigns were staged by a group of employees called End Forced Arbitration. Google for Walkout for Real Change, which organized a company-wide protest in November, demanded an end to arbitration, listing it alongside, among other things, requests that Google close pay gaps and disclose a sexual harassment transparency report. And Google isn't the only big name tech company to drop arbitration; Microsoft, Facebook and Uber all recently ended mandatory arbitration for sex harassment claims following public pressure.
