What new ban on forced arbitration in #MeToo cases means for MA employers

Inspired by the #MeToo movement, Congress recently passed a bill aimed at preventing employers from requiring arbitration of sexual assault and sexual harassment claims. President Joe Biden has signaled his support for the legislation, which will take effect when he signs it. #MeToo activists have maintained mandatory arbitration provisions silence victims and prevent them from publicly airing their experiences. The new law will affect employers around the country, including in Massachusetts, that use mandatory arbitration clauses or agreements to resolve disputes with employees.

What new law covers

In February 2022, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which bars the enforcement of most mandatory arbitration provisions in cases alleging sexual assault or sexual harassment. The Act will apply to all predispute arbitration clauses, including those in contracts signed before the new law’s enactment.

The Act also invalidates predispute agreements waiving an employee’s right to participate in a joint, class, or collective action in court, arbitration, or any other forum involving a sexual assault or sexual harassment dispute. As a result, in cases in which more than one employee is alleging such claims, they may be able to pursue the allegations as a group when appropriate. Employers can’t require each employee to file the claims individually.