A bill prohibiting mandatory arbitration of employment-related claims, introduced in late 2017 before the Massachusetts House of Representatives, continues to gain traction in early 2018.  The bill (House Bill 4058), which proposes legislation that would prohibit enforcement of mandatory arbitration agreements “relating to a claim of discrimination, non-payment of wages or benefits, retaliation, harassment or violation of public policy in employment,” is currently being considered by the state Joint Committee on Labor and Workforce Development.  The state Senate Committee on Ways and Means is also currently evaluating a similar bill (Senate Bill 4058), which contains similar prohibitions regarding the arbitration of employment related claims. Both bills would impose attorneys’ fees as remedies.

Set against the backdrop of the “#MeToo” movement and the recent onslaught of allegations of harassment in the workplace, the proposed legislation in Massachusetts is joined by similar proposed legislation in a number of other states as well as in the federal legislature.  The proposed federal legislation (named the “End Forced Arbitration of Sexual Harassment Act”) – and which was introduced with bipartisan support – would prohibit the enforcement of arbitration agreements pertaining to allegations of sexual harassment or discrimination brought under Title VII of the Civil Rights Act of 1964.  Notably, the proposed Massachusetts bills go further than the proposed federal bill, insofar as the Massachusetts bills would also prohibit arbitration claims as to wage claims as well as discrimination claims.

Although this proposed federal and Massachusetts legislation has not yet become law (and though it may be months, or even years, before it does if at all), employers should stay on the lookout for any further legislative developments, both on a state and federal level.  In light of the considerable momentum and mounting social awareness surrounding the issue of sexual harassment in the workplace, it is possible that the current legal landscape pertaining to arbitration agreements may shift in the near future. To that end, employers should also continue to dedicate significant attention to the enforcement of anti-harassment and discrimination policies, and should consult with counsel in doing so.


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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.