The Senate Judiciary Committee voted yesterday to advance the Protecting Older Americans Act, which bans forced arbitration of age discrimination claims under the Age Discrimination in Employment Act (ADEA). Two years ago, President Biden signed a similar law that banned forced arbitration for sexual harassment claims, which I wrote about here.
What is the Effect of the Protecting Older Americans Act for South Carolina Employees?
If the Protecting Older Americans Act goes into effect (and it appears that there is bipartisan support for that to happen sometime in 2024), then that bans forced arbitration of age discrimination claims. Older South Carolina employees and other employees across the nation would be allowed to bring their age discrimination lawsuit before a jury of their peers instead of having their claim shunted to the side and stifled by the private arbitration process. Companies prefer the arbitration process because it is a more favorable forum for them instead of the employee.
Under the proposed law, South Carolina employees would still have the option to use the arbitration process if the employee chooses to use that method. But companies would simply not be allowed to force the employee into private arbitration. Keep in mind, though, that the law would only apply to new claims, not those that are currently pending in arbitration.
What About Other Employment Law Claims?
Sexual harassment has already been excluded from forced arbitration, and other efforts are ongoing to ban arbitration for the remaining types of employment claims. For example, Sen. Cory Booker has proposed legislation that would ban arbitration for race discrimination claims.
But until those types of law actually become law, any existing arbitration agreements for disability discrimination, race, national origin, and other employment claims would still be in play (although subject to challenge by employees).
Takeaways for South Carolina Employees
Practically speaking, many employees are not even aware if they ever signed an arbitration agreement, especially since employees are expected to sign many documents during the onboarding and orientation process. But if you do sign one, you should try to make sure you get a copy of that agreement, along with any employment contracts, such as confidentiality, non-compete agreements, and non-solicitation agreements. For any consult that I have with South Carolina employees, I need to review as many of these contracts as possible so I can give the best advice to my clients.
If you have potential claims for age discrimination, be mindful of the 300 day deadline to file a charge of discrimination with the EEOC. You should take appropriate steps to speak with an employment lawyer as quickly as possible to make sure your rights are protected.
