,,ii #aahth ,,congress #b;d ,session ,s4 #eafi ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,september #be1 #bjbd,ms4 ,smith introduced the following bill2 which was read twice and referred to the ,committee on ,health1 ,education1 ,labor1 and ,pensions ,a ,,bill ,to amend the ,employee ,retirement ,income ,security ,act of #aigd to provide that any mandatory predispute or coerced postdispute arbitration clause1 class action waiver1 representation waiver1 or discretionary clause with respect to a plan is unenforceable1 to prohibit any such clause or waiver from being included in a plan document or other agreement with plan participants1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,employee and ,retiree ,access to ,justice ,act of #bjbd4 #b4 ,unenforceable arbitration clauses1 class action waivers1 representation waivers1 and discretionary clauses 7a7 ,in general ,section #ejb of the ,employee ,retirement ,income ,security ,act of #aigd 7#bi ,u4,s4,c4 #aacb7 is amended by adding at the end the following3 7n7 7#a7 ,in any civil action brought by1 or on behalf of1 a participant or beneficiary pursuant to this section or with respect to a common law claim involving a plan or plan benefit1 notwithstanding any other provision of law-- 7,a7 no predispute arbitration provision shall be valid or enforceable if it requires arbitration of a matter related to a claim brought under this section2 7,b7 no postdispute arbitration provision shall be valid or enforceable unless-- 7i7 the provision was not required by any person1 obtained by coercion or threat of adverse action1 or made a condition of participating in a plan1 receiving benefits under a plan1 or receiving any other employment1 work1 or any employment-related or work-related privilege or benefit2 7ii7 each participant or beneficiary agreeing to the provision was informed1 through a paper notice1 in a manner reasonably calculated to be understood by the average plan participant1 of the right of the participant or beneficiary under subparagraph 7,c7 to refuse to agree to the provision without retaliation or threat of retaliation2 7iii7 each participant or beneficiary agreeing to the provision so agreed after a waiting period of not fewer than #de days1 beginning on the date on which the participant or beneficiary was provided both the final text of the provision and the disclosures required under clause 7ii72 and 7iv7 each participant or beneficiary agreeing to the provision affirmatively consented to the provision in writing2 7,c7 no covered provision shall be valid or enforceable1 if prior to a dispute to which the covered provision applies1 a participant or beneficiary undertakes or promises not to pursue1 bring1 join1 litigate1 or support any kind of individual1 joint1 class1 representative1 or collective claim available under this section in any forum that1 but for such covered provision1 is of competent jurisdiction2 7,d7 no covered provision shall be valid or enforceable1 if after a dispute to which the covered provision applies arises1 a participant or beneficiary undertakes or promises not to pursue1 bring1 join1 litigate1 or support any kind of individual1 joint1 class1 representative1 or collective claim under this section in any forum that1 but for such covered provision1 is of competent jurisdiction1 unless the covered provision meets the requirements of subparagraph 7,b72 and 7,e7 no covered provision related to a plan other than a multiemployer plan shall be valid or enforceable that purports to confer discretionary authority to any person with respect to benefit determinations or interpretation of plan language1 or to provide a standard of review of such determinations or interpretation by a reviewing court in an action brought under this section that would require anything other than de novo review of such determinations or interpretation4 7#b7 ,in this subsection-- 7,a7 the term covered provision means any document1 instrument1 or agreement related to a plan or plan benefit1 regardless of whether such provision appears in a plan document or in a separate agreement2 7,b7 the term predispute arbitration provision means a covered provision that requires a participant or beneficiary to arbitrate a dispute related to the plan or an amendment to the plan that had not yet arisen at the time such provision took effect2 7,c7 the term postdispute arbitration provision means a covered provision that requires a participant or beneficiary to arbitrate a dispute related to the plan or an amendment to the plan that arose before the time such provision took effect2 and 7,d7 the term retaliation means any action in violation of section #eaj4 7#c7 7,a7 ,any dispute as to whether a covered provision that requires a participant or beneficiary to arbitrate a dispute related to a plan is valid and enforceable shall be determined by a court1 rather than an arbitrator1 regardless of whether any contractual provision purports to delegate such determinations to the arbitrator and irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement4 7,b7 ,for purposes of this subsection1 a dispute shall be considered to arise only when a plaintiff has actual knowledge 7within the meaning of such term in section #dac7 of a breach or violation giving rise to a claim under this section4 4 7b7 ,regulations ,the ,secretary of ,labor may promulgate such regulations as may be necessary to carry out the amendment made by subsection 7a71 including providing for the form and content of notices required pursuant to such amendment4 #c4 ,prohibition on mandatory arbitration clauses1 class action waivers1 representation waivers1 and discretionary clauses ,section #djb of the ,employee ,retirement ,income ,security ,act of #aigd 7#bi ,u4,s4,c4 #aajb7 is amended by adding at the end the following3 7d7 7#a7 ,no covered person may-- 7,a7 require participants or beneficiaries to agree to a predispute arbitration provision as a condition for participation in1 or receipt of benefits under1 a plan2 7,b7 agree to a postdispute arbitration provision with a participant or beneficiary with respect to a plan or plan benefit unless the conditions of clauses 7i7 through 7iv7 of section #ejb7n77#a77;,b7 are satisfied with respect to such provision2 or 7,c7 agree to any other covered provision with respect to a plan or plan benefit under any circumstances under which such provision would not be valid and enforceable under subparagraphs 7,c7 through 7,e7 section #ejb7n77#a74 7#b7 ,in this subsection-- 7,a7 the term covered person means-- 7i7 a plan2 7ii7 a plan sponsor2 7iii7 an employer2 or 7iv7 a person engaged by a plan for purposes of administering or operating the plan2 and 7,b7 the terms covered provision1 predispute arbitration provision and postdispute arbitration provision have the meanings given such terms in section #ejb7n77#b74 4 #d4 ,effective date 7a7 ,in general ,the amendments made by sections #b and #c shall take effect on the date of enactment of this ,act and shall apply with respect to any dispute or claim that arises or accrues on or after such date1 including any dispute or claim to which a provision predating such date applies1 regardless of whether plan documents have been updated in accordance with such amendments4 7b7 ,enforcement with respect ,to plan document updates ,notwithstanding subsection 7a71 no person shall be deemed to be in violation of such amendments on account of plan documents that have not been updated in accordance with such amendments until after the beginning of the first plan year that begins on or after the date that is #a year after the date of enactment of this ,act1 provided that such person acts in accordance with such amendments during the period in which the plan documents have not been updated4