Employment Law Daily FAIR Act introduced to end forced arbitration, ‘restore accountability’ for workers, consumers
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Monday, March 4, 2019

FAIR Act introduced to end forced arbitration, ‘restore accountability’ for workers, consumers

By Joy P. Waltemath, J.D.

The FAIR Act—The Forced Arbitration Injustice Repeal Act—was introduced February 28, bicameral legislation designed to increase individual rights to seek justice and accountability through the court system.

House Representative Hank Johnson (D-Ga.) and Senator Richard Blumenthal (D-Conn.) introduced the FAIR Act on February 28, which supporters say would increase Americans’ rights to seek justice and accountability through the court system. The House bill, H.R. 1423, would eliminate forced arbitration clauses as a pre-condition for obtaining a product, service, or job in employment, consumer, and civil rights cases, and would allow consumers and workers to agree to arbitration after a dispute occurs. The House bill has 147 cosponsors.

Senator Blumenthal introduced the companion bill in the Senate, which has 34 cosponsors.

The bill was announced at a news conference on Capitol Hill with Senator Blumenthal, Judiciary Chairman Representative Jerrold Nadler (D-N.Y.), Chairman of the House Antitrust Subcommittee Representative David Cicilline (D-R.I.), Chairman of the Committee on Education and Labor Representative Bobby Scott (D-Va.), Representative Cheri Bustos (D-Ill.), former Fox News Anchor Gretchen Carlson, members of the American Association for Justice, Public Citizen, and victims of arbitration rulings.

Protecting workers and consumers. “Forced arbitration agreements undermine our indelible Constitutional right to trial by jury, benefiting powerful businesses at the expense of American consumers and workers,” said Representative Johnson, chair of the Judiciary Subcommittee on Court, Intellectual Property and the Internet.

Senator Blumenthal pointed out that “One of the systems that is truly rigged against consumers, workers, and the American people is our current system of forced arbitration. Forced arbitration is unfair, unjust, and un-American. One of the fundamental principles of our American democracy is that everyone gets their day in court. Forced arbitration deprives Americans of that basic right. This kind of injustice has to end. The Forced Arbitration Injustice Repeal Act is a measure whose time has come.”

The FAIR Act would “end the use of forced arbitration in consumer, employment, civil rights, and antitrust disputes,” said Judiciary Chairman Jerrold Nadler. “Victims of sexual assault, racial discrimination, and other forms of corporate abuse and misconduct deserve their day in court. As the Chairman of the House Judiciary Committee, I will not rest until we have fully restored these rights by passing historic legislation to end forced arbitration.”

Separate legislation for servicemembers. “The men and women who serve our country in uniform deserve nothing but the best,” said Congressman David Cicilline, who also introduced a separate bill on forced arbitration, the Justice for Servicemembers Act. “For all the sacrifices they make overseas, they shouldn’t worry about whether they’ll have a job when they come home.”

Public interest support. A broad coalition of public-interest groups support the legislative initiative, some of which issued separate releases endorsing the bills. For example, |”Forced arbitration is stacked in favor of corporations and shields them from being held accountable for breaking the law and other misconduct,” said George Slover, senior policy counsel for Consumer Reports. “Arbitration provides none of the fundamental safeguards that are the hallmarks of a fair, impartial, and accessible court proceeding. The FAIR Act will help restore the rights of consumers to hold corporations accountable when they have engaged in widespread abuse or marketed an unsafe product or service.”

NELP statement. The National Employment Law Project also issued a statement, saying “The Act will restore access to justice, hold corporations accountable, and let workers and consumers decide whether they want to join together to right wrongs in the courts or in private arbitration. Arbitrations are secret, paid for by the company, and have almost no oversight. The FAIR Act would prohibit the use of forced, pre-dispute arbitration clauses in employment and consumer contracts and prevent bosses from forcing workers to sign away their right to join together in a class or collective actions.

“The #MeToo movement has illuminated how crucial it is for workers to be able to voice their concerns together—and how particularly harmful forced arbitration is to women fighting sexual harassment. Forced arbitration means having to pursue one’s claims alone, before a private arbitrator hired by the company, with a low likelihood of success and little chance to appeal. As Gretchen Carlson has noted, ‘If a woman’s being sexually harassed in the workplace and she has an arbitration clause, she’s screwed.’”

To watch the news conference, click HERE.

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