Wednesday, February 1, 2023

Anti-Arbitration Job Killer Threatens to Flood Courts

An anti-arbitration bill identified by the California Chamber of Commerce as a job killer will burden the overworked court system if adopted.

AB 51 (Gonzalez; D-San Diego) prohibits arbitration of labor and employment claims as a condition of employment.

The CalChamber has tagged AB 51 as a job killer due to the significant increased costs employers will face as a result of more litigation and the expense of delayed dispute resolutions if the bill becomes law.

AB 51 also proposes to add a new private right of action under the Fair Employment and Housing Act (FEHA) and exposes employers to criminal liability for any violation.

Preempted by Federal Law

In opposing AB 51, the CalChamber has emphasized repeatedly that the bill will undoubtedly be challenged in court, creating more litigation without providing any benefit to employees as intended.

Last year, Governor Edmund G. Brown Jr. vetoed a virtually identical bill, AB 3080 (Gonzalez; D-San Diego), citing his recognition that the bill “plainly violates federal law.”

Both the California Court of Appeal and the U.S. Supreme Court have held specifically that state legislation trying to ban arbitration agreements is preempted by federal law, the Federal Arbitration Act.

Numerous opinions by the U.S. Supreme Court and the California Supreme Court over the last decade have consistently held that any state law which interferes with, discriminates against, or limits the use of arbitration is preempted by federal law.

Criminal Liability

Given the placement of AB 51’s provisions in the Labor Code, any violation will be a misdemeanor.

Accordingly, employers will face both civil liability for any violation of AB 51 and also may face criminal charges regarding arbitration agreements.

More Lawsuits

Because any violation of AB 51’s provisions will be an “unlawful employment practice,” it is subject to the private right of action under FEHA.

Besides placing more costs and burden on the Department of Fair Employment and Housing, AB 51 will expose employers to another layer of costly litigation, including attorney’s fees and punitive damages.

Delays

Neither employers nor employees will benefit from the delays and uncertainty AB 51 will cause.

If the use of arbitration is limited, options remaining for employees to resolve many labor and employment claims are a hearing before the Labor Commissioner (an office that lacks funding or resources for timely responses) and the overworked court system.

Countering the notion that employees can fare better in court, a state Department of Industrial Relations review of 1,500 settlement agreements found that the plaintiffs’ attorneys had failed to protect employees or were of only marginal assistance in 75% of the cases.

The CalChamber and a coalition of employer groups and local chamber of commerce continue to oppose AB 51 as a job killer.

Staff Contact: Jennifer Barrera

Jennifer Barrera
Jennifer Barrera
Jennifer Barrera took over as president and CEO of the California Chamber of Commerce on October 1, 2021. She has been part of the CalChamber team since 2010 and stepped into the top position after serving as CalChamber executive vice president, overseeing the development and implementation of policy and strategy for the organization, as well as representing the CalChamber on legal reform issues. Barrera is well-known for her success rate with the CalChamber’s annual list of job killer legislation, efforts to reform the Private Attorneys General Act (PAGA) and leadership working with employers on critical issues, including most recently those arising from the COVID-19 pandemic. In addition, she advises the business compliance activities of the CalChamber on interpreting changes in employment law. Barrera earned a B.A. in English from California State University, Bakersfield, and a J.D. with high honors from California Western School of Law. See full bio

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