Employee and Retiree Access to Justice Act

For claims under ERISA, the bill would make predispute arbitration clauses unenforceable, except clauses the Secretary of Labor finds resulted from bona fide collective bargaining. Arbitration agreed to after a dispute arises would be allowed only with written, voluntary consent, a paper notice explaining the right to refuse, and at least 45 days to consider the final terms and notice.

The bill would make clauses unenforceable if they require participants or beneficiaries to give up the ability to pursue, join, or support individual, joint, class, representative, or collective claims. A waiver agreed to after a dispute arises would have to meet the bill’s conditions for post-dispute agreements.

For plans other than multiemployer plans, the bill would bar provisions giving someone discretion over benefit decisions or plan-language interpretation when those provisions would require a reviewing court to use a standard other than de novo review. A court, not an arbitrator, would decide whether a plan-related arbitration provision is valid and enforceable.

The changes would apply to disputes or claims arising on or after enactment, even if an older plan document contains a conflicting provision. A person would not be treated as violating the changes solely because plan documents have not yet been updated until the first plan year beginning on or after one year after enactment, if that person follows the new rules in the meantime.