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California AB 51 Bans Mandatory Employment Arbitration Agreements 

From JDSupra, Robert Friedman, Jessica Marinelli, and Bruce Sarchet discuss AB51, a California bill that bans arbitration agreements in employment. They write:

On October 13, 2019, California Governor Gavin Newsom signed Assembly Bill (AB) 51 into law, banning most employment arbitration agreements in California starting January 1, 2020. This new law is expansive in scope but short on certainty, as it raises several questions and will likely face legal challenges.

What Does AB 51 Do?

AB 51 prohibits employers from requiring applicants, employees, and potentially independent contractors to waive any right, forum, or procedure established by the California Fair Employment and Housing Act and the Labor Code.  The law applies to “contracts for employment entered into, modified, or extended on or after January 1, 2020.”  The stated purpose of AB 51 is to ensure that any contract relating to those rights and procedures be entered into voluntarily and without coercion.  Due to its particular placement in the Labor Code, violation of the law will constitute a misdemeanor.

Last year, then-Governor Jerry Brown vetoed a similar bill, AB 3080 (2018).  In his veto message, he stated:  “Since this bill plainly violates federal law, I cannot sign this measure.”  Governor Brown did sign SB 1300 (2018), however, which, among other things, added section 12964.5 to the Government Code.  That section contains language similar to this year’s AB 51, as it makes it unlawful for an employer to require that employees, as a condition of employment, waive their right to pursue a civil action for an alleged violation of the Fair Employment and Housing Act.

What About Preemption?

Generally, the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (FAA) preempts state laws like AB 51 (and Government Code section 12964.5) that attempt to regulate and/or restrict arbitration agreements more strictly than other types of contracts.  The U.S. Supreme Court has issued recent decisions that uphold the primacy of the FAA.

AB 51, however, expressly states that it does not invalidate a written arbitration agreement that is otherwise enforceable under the FAA.  Such statutory language is untested in California, and so the impact of this “savings clause” is difficult to predict at this time.  Other questions also remain unanswered. For example, does a current agreement “extend” into 2020 if it is not abrogated by the parties prior to January 1?

Many in the labor and employment law field anticipate a successful legal challenge to AB 51 on the grounds that it is preempted by the FAA, which would eventually invalidate the law.  Such a challenge could mean that the law’s validity may remain unsettled for some time.

Read the full story at California AB 51 Bans Mandatory Employment Arbitration Agreements | Littler – JDSupra

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