SB 766 (Monning) International commercial arbitration:representation. Support. Chaptered.
This bill added Section 432.6 to the Labor Code. The bill prohibited an employer outside of the securities industry from requiring an employee to enter into any agreement that waived the right to a jury trial, i.e., an arbitration agreement, and prohibited the employer from retaliating against an employee who refused to sign such an agreement.
The bill applied to all agreements entered into, extended, or modified after January 1, 2020. It was virtually identical to AB 3080, which was vetoed by Governor Brown in 2018 because he believed that it was preempted by the Federal Arbitration Act (FAA). The author believed that the bill would not be preempted because it provided that it did not invalidate an arbitration agreement signed by the employee (even one required as a condition of employment) if the agreement was otherwise enforceable under the FAA.
The bill also made a violation of Section 432.6 an unlawful employment practice. Thus, an employer who violated the statute by requiring its employees to sign arbitration agreements as a condition of employment would be committing a misdemeanor.
The bill also stated that a provision in an arbitration agreement that allowed the employee to opt out of a "mandatory" arbitration agreement or required the employee to take any other affirmative action to avoid the waiver was also a violation of Section 432.6. CDRC opposed the bill, in part because it concluded that the bill was preempted and in part because it believed that employers would by and large decline to enter into voluntary arbitration agreements and this in turn would deprive access to justice for employees with modest claims.
The Chamber of Commerce and some allied organizations filed suit in the Eastern District of California to enjoin implementation of Section 432.6. On February 6, 2020, the court held that the statute was preempted by the FAA and granted plaintiffs' motion for a preliminary injunction. The defendants appealed to the Ninth Circuit which ultimately affirmed the district court. See Chamber of Commerce of the United States v. Bonta, 62 F. 4th 273 (9th Cir. 2023).
SB 954 (Wieckowski) Mediation: confidentiality: disclosure. Support. Chaptered.
Except in the case of a class or representative action, required an attorney representing a person participating in a mediation or a mediation consultation to provide his or her client, as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation, with a printed disclosure containing the confidentiality restrictions related to mediation, and to obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions. If an attorney is retained after an individual agrees to participate in a mediation or mediation consultation, required the attorney to comply with the printed disclosure and acknowledgment requirements as soon as reasonably possible after being retained. Specified language that would be deemed compliant with the printed disclosure and acknowledgment requirements. Failure of an attorney to comply with these disclosure requirements does not invalidate an agreement prepared in the course of, or pursuant to, a mediation. A communication, document, or writing related to an attorney's compliance with the disclosure requirements is not confidential and may be used in an attorney disciplinary proceeding if the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation.
AB 3080 (Gonzalez Fletcher) Employment discrimination: enforcement. Oppose. Vetoed.
The bill had two parts. The first part would have prohibited a person from, as a condition of employment, continued employment, the receipt of any employment-related benefit, or as a condition of entering into a contractual agreement, prohibiting an applicant for employment, employee, or independent contractor from disclosing to any person an instance of sexual harassment that the employee or independent contractor suffers, witnesses, or discovers in the workplace or in the performance of the contract, or otherwise opposing any lawful practice, or from exercising any right or obligation or participating in any investigation or proceeding with respect to unlawful harassment or discrimination. CDRC had no objection to this part of the bill. The second part would have also prohibit an employer from requiring any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (FEHA) or other specific statutes governing employment, as a condition of employment, continued employment, the receipt of any employment-related benefit, or as a condition of entering into a contractual agreement. Would have also prohibited an employer from threatening, retaliating or discriminating against, or terminating any applicant for employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of specific statutes governing employment. Although CDRC opposes mandatory arbitration, it concluded that this part was preempted and thus it had to oppose the bill.