[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 537 Introduced in Senate (IS)]
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115th CONGRESS
1st Session
S. 537
To amend title 9 of the United States Code with respect to arbitration.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 7, 2017
Mr. Franken (for himself, Ms. Baldwin, Mr. Blumenthal, Mr. Booker, Mr.
Brown, Mr. Casey, Mr. Coons, Mr. Durbin, Ms. Heitkamp, Ms. Hirono, Mr.
Leahy, Mr. Markey, Mr. Menendez, Mr. Merkley, Mrs. Murray, Mr. Reed,
Mr. Sanders, Mr. Schatz, Mrs. Shaheen, Mr. Udall, Ms. Warren, Mr.
Whitehouse, and Mr. Wyden) introduced the following bill; which was
read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 9 of the United States Code with respect to arbitration.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Arbitration Fairness Act of 2017''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) The Federal Arbitration Act (now enacted as chapter 1
of title 9 of the United States Code) was intended to apply to
disputes between commercial entities of generally similar
sophistication and bargaining power.
(2) A series of decisions by the Supreme Court of the
United States have interpreted the Act so that it now extends
to consumer disputes and employment disputes, contrary to the
intent of Congress.
(3) Most consumers and employees have little or no
meaningful choice whether to submit their claims to
arbitration. Often, consumers and employees are not even aware
that they have given up their rights.
(4) Mandatory arbitration undermines the development of
public law because there is inadequate transparency and
inadequate judicial review of arbitrators' decisions.
(5) Arbitration can be an acceptable alternative when
consent to the arbitration is truly voluntary, and occurs after
the dispute arises.
SEC. 3. ARBITRATION OF EMPLOYMENT, CONSUMER, ANTITRUST, AND CIVIL
RIGHTS DISPUTES.
(a) In General.--Title 9 of the United States Code is amended by
adding at the end the following:
``CHAPTER 4--ARBITRATION OF EMPLOYMENT, CONSUMER, ANTITRUST, AND CIVIL
RIGHTS DISPUTES
``Sec.
``401. Definitions.
``402. Validity and enforceability.
``Sec. 401. Definitions
``In this chapter--
``(1) the term `antitrust dispute' means a dispute--
``(A) involving a claim for damages allegedly
caused by a violation of the antitrust laws (as defined
in subsection (a) of the first section of the Clayton
Act (15 U.S.C. 12)) or State antitrust laws; and
``(B) in which the plaintiffs seek certification as
a class under rule 23 of the Federal Rules of Civil
Procedure or a comparable rule or provision of State
law;
``(2) the term `civil rights dispute' means a dispute--
``(A) arising under--
``(i) the Constitution of the United States
or the constitution of a State; or
``(ii) a Federal or State statute that
prohibits discrimination on the basis of race,
sex, disability, religion, national origin, or
any invidious basis in education, employment,
credit, housing, public accommodations and
facilities, voting, or program funded or
conducted by the Federal Government or State
government, including any statute enforced by
the Civil Rights Division of the Department of
Justice and any statute enumerated in section
62(e) of the Internal Revenue Code of 1986
(relating to unlawful discrimination); and
``(B) in which at least 1 party alleging a
violation of the Constitution of the United States, a
State constitution, or a statute prohibiting
discrimination is an individual;
``(3) the term `consumer dispute' means a dispute between
an individual who seeks or acquires real or personal property,
services, securities or other investments, money, or credit for
personal, family, or household purposes and the seller or
provider of such property, services, securities or other
investments, money, or credit;
``(4) the term `employment dispute' means a dispute between
an employer and employee arising out of the relationship of
employer and employee as defined in section 3 of the Fair Labor
Standards Act of 1938 (29 U.S.C. 203); and
``(5) the term `predispute arbitration agreement' means any
agreement to arbitrate a dispute that had not yet arisen at the
time of the making of the agreement.
``Sec. 402. Validity and enforceability
``(a) In General.--Notwithstanding any other provision of this
title, no predispute arbitration agreement shall be valid or
enforceable if it requires arbitration of an employment dispute,
consumer dispute, antitrust dispute, or civil rights dispute.
``(b) Applicability.--
``(1) In general.--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, 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 an employer and a labor organization or between labor
organizations, except that no such arbitration provision shall
have the effect of waiving the right of an employee to seek
judicial enforcement of a right arising under a provision of
the Constitution of the United States, a State constitution, or
a Federal or State statute, or public policy arising
therefrom.''.
(b) Technical and Conforming Amendments.--
(1) In general.--Title 9 of the United States Code is
amended--
(A) in section 1, by striking ``of seamen,'' and
all that follows through ``interstate commerce'';
(B) in section 2, by inserting ``or as otherwise
provided in chapter 4'' before the period at the end;
(C) in section 208--
(i) in the section heading, by striking
``Chapter 1; residual application'' and
inserting ``Application''; and
(ii) by adding at the end the following:
``This chapter applies to the extent that this
chapter is not in conflict with chapter 4.'';
and
(D) in section 307--
(i) in the section heading, by striking
``Chapter 1; residual application'' and
inserting ``Application''; and
(ii) by adding at the end the following:
``This chapter applies to the extent that this
chapter is not in conflict with chapter 4.''.
(2) Table of sections.--
(A) Chapter 2.--The table of sections for chapter 2
of title 9, United States Code, is amended by striking
the item relating to section 208 and inserting the
following:
``208. Application.''.
(B) Chapter 3.--The table of sections for chapter 3
of title 9, United States Code, is amended by striking
the item relating to section 307 and inserting the
following:
``307. Application.''.
(3) Table of chapters.--The table of chapters for title 9,
United States Code, is amended by adding at the end the
following:
``4. Arbitration of employment, consumer, antitrust, and 401''.
civil rights disputes.
SEC. 4. EFFECTIVE DATE.
This Act, and the amendments made by this Act, shall take effect on
the date of enactment of this Act and shall apply with respect to any
dispute or claim that arises on or after such date.
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