August 12, 2022

Volume XII, Number 224

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EMPLOYER ALERT – Senate Clears Way for Major Shift in Banning Arbitration Agreements and Class Waivers for Workplace Sexual Harassment Disputes

On February 10, 2022, the U.S. Senate passed the Ending Force Arbitration of Sexual Assault and Sexual Harassment Act (the “Act”, available here: H.R. 4445).  President Biden is expected to sign the bill into law shortly.  The Act will invalidate and bar enforcement of pre-dispute arbitration agreements, joint-action waivers, and related clauses for disputes involving claims of sexual assault or sexual harassment, subject to the election of the party alleging the misconduct.

The impact is significant.  According to its sponsors, the Act will implicate agreements to which 60 million workers in the U.S. are subject, including 57% of women in the U.S. workforce.  Notably, the Act will retroactively apply to pre-dispute agreements entered into before the law takes effect.

The new law will signal what is arguably the largest legislative victory in a chain of #metoo reforms and change the legal landscape by making it easier for sexual assault and sexual harassment claims to reach the courtroom, dramatically affecting future litigation.

The Act’s definitions are broad and will likely accelerate the trend of individual states passing laws removing barriers for workplace harassment and discrimination claims, as we have noted elsewhere in recent months.

The Act does include one important clarification.  In general terms, the Act will not affect post-dispute arbitrations or agreements between employers and employees entered after a dispute arises.

Employers should prioritize assessing their agreements, policies, and litigation strategies for current and potential claims, and work with counsel to ensure their handbooks, trainings, and personnel are in compliance and up to date in light of this and other recent developments.

Copyright ©2022 Nelson Mullins Riley & Scarborough LLPNational Law Review, Volume XII, Number 42
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About this Author

Partner

Tammy Bokmuller defends corporations in warranty litigation, multidistrict products liability litigation, employment litigation, state court coordinated proceedings, and class actions. She has served as national coordinating counsel, managing mass actions around the country in state and federal courts.

Her products liability litigation experience includes defending manufacturers and distributors of medical devices, pharmaceuticals, and other products. She has also defended products manufacturers and distributors against environmental and toxic...

619-489-6162
Robert O. Sheridan Labor & Employment Litigation Attorney Nelson Mullins Law Firm Boston
Partner

Rob's practice encompasses a variety of litigation matters, with an emphasis on litigation and counseling on federal and state labor and employment issues.

In the area of employment law, Rob has counseled his clients on a wide variety of employment issues, such as discrimination and harassment, wage-and-hour law compliance, independent contractor and employee classification, reasonable accommodation...

617.217.4634
P. John Veysey Employment Attorney Nelson Mullins Boston
Associate

John maintains a national practice focused primarily on business litigation and labor and employment law. He has experience litigating complex matters in state, federal, and MDL venues throughout the country, including at trial, mediation, arbitration, and before administrative bodies. John represents and advises Fortune 500 companies, private and publicly held corporations, manufacturers, individual executives, and numerous other technology, financial services, healthcare, investment banking, private equity, insurance, media, energy, food, travel, hospitality, and...

617-217-4645
Associate

Mikaela Jackson is an associate in the San Diego, California office. Mikaela defends automobile manufacturers in breach of warranty and fraud matters throughout California and in federal court. She also represents employers in labor and employment law disputes as well as manufacturers in product liability litigation.

619-489-6174
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