Employee and Retiree Access to Justice Act

For covered claims under the Employee Retirement Income Security Act (ERISA), a clause requiring arbitration before a dispute arises would not be enforceable. An agreement to arbitrate after a dispute arises would be enforceable only if it is voluntary, includes a paper notice of the right to refuse without retaliation, allows at least 45 days to consider the agreement, and is affirmatively accepted in writing.

A clause could not bar a participant or beneficiary from pursuing or joining individual, joint, class, representative, or collective claims before a dispute arises. After a dispute arises, such a restriction would be enforceable only if it meets the safeguards for post-dispute agreements; the bill excludes agreements the Secretary of Labor finds were produced by bona fide collective bargaining from its definitions of arbitration provisions.

For plans other than multiemployer plans, a provision could not give someone discretionary authority over benefit decisions or plan-language interpretation, or require a court to use a standard more deferential than de novo review. A court, not an arbitrator, would decide whether a plan-related arbitration provision is enforceable.

Plans, plan sponsors, employers, and people engaged to administer or operate a plan could not require predispute arbitration as a condition of participation or benefits. They also could not agree to post-dispute arbitration or other covered provisions unless those provisions meet the bill’s conditions.

The changes would apply to disputes or claims arising or accruing on or after enactment, even if the relevant plan provision was adopted earlier. A person would not be considered in violation solely because plan documents had not yet been updated until after the first plan year beginning on or after one year after enactment, provided the person followed the new rules in the meantime.