Amended in Senate August 19, 2015

Amended in Senate July 2, 2015

Amended in Assembly April 30, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 465

Introduced by Assembly Member Roger Hernández

February 23, 2015

An act to add Section 925 to the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 465, as amended, Roger Hernández. Contracts against public policy.

Existing law declares that negotiation of terms and conditions of labor should result from voluntary agreement between employer and employee. Existing law provides that any person who coerces or compels any other person to enter into an agreement, written or verbal, not to join or become a member of any labor organization, as a condition of securing employment or continuing in employment, is guilty of a misdemeanor.

This bill would prohibit any person from requiring another person, as a condition of employment, to agree to the waiver of any legal right, penalty, forum, or procedure for any employment law violations. The bill would prohibit a person from threatening, retaliating against, or discriminating against another person based on a refusal to agree to such waiver, and would provide that any such waiver required from an employee or potential employee as a condition of employment or continued employment is unconscionable, against public policy, and unenforceable. The bill would require that any waiver of a person’s employment rights, not prohibited by state or federal law, be knowing and voluntary and in writing, and expressly not made as a condition of employment. The bill would provide that a person seeking to enforce a waiver has the burden of proof to show that the waiver was knowing and voluntary. The bill would apply to any waiver agreement entered into on or after January 1, 2016, and would begin delete impose a $10,000 penalty against the employer for each violation of its provisions, with the penalty moneys and end delete begin insert authorize award of end insert reasonable attorney’s fees begin delete awarded end delete to the prevailing claimant. begin insert The bill would except specified self-regulatory organizations and specified employees from the application of its provisions. The bill would provide that its provisions are severable. end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

(a) The Legislature finds and declares that it is
the policy of the State of California to ensure that all persons have
the full benefit of the rights, penalties, remedies, forums, and
procedures established in the Labor Code, and that individuals not
be deprived of those rights, penalties, remedies, forums, or
procedures through the use of involuntary or coerced waivers.

(b) It is the purpose of this act to ensure that a contract to waive
any of the rights, penalties, remedies, forums, or procedures under
the Labor Code, including any provision that has the effect of
limiting the full application or enforcement of any right, remedy,
forum, or procedure available under the Labor Code, is a matter
of voluntary consent, not coercion.

SEC. 2.  

Section 925 is added to the Labor Code, to read:

925.  

(a) A person shall not require another person to waive
any legal right, penalty, remedy, forum, or procedure for a violation
of any provision of this code, as a condition of employment,
including the right to file and pursue a civil action or complaint
with, or otherwise notify, the Labor Commissioner, state agency,
other public prosecutor, law enforcement agency, or any court or
other governmental entity.

(b) A person shall not threaten, retaliate, or discriminate against
another person on the basis that the other person refuses to waive
any legal right, penalty, remedy, forum, or procedure for a violation
of this code, including the right to file and pursue a civil action or
complaint with, or otherwise notify, the Labor Commissioner, state
agency, other public prosecutor, law enforcement agency, or any
court or other governmental entity.

(c) Except for any legal right, penalty, forum, or procedure that
state or federal law prohibits from being waived, any waiver of
any legal right, penalty, remedy, forum, or procedure for a violation
of this code, including the right to file and pursue a civil action or
complaint with, or otherwise notify, the Labor Commissioner, state
agency, other public prosecutor, law enforcement agency, or any
court or other governmental entity shall be knowing and voluntary
and in writing, and expressly not made as a condition of
employment.

(d) Any waiver of any legal right, penalty, remedy, forum, or
procedure for a violation of this code that is required as a condition
of employment shall be deemed involuntary, unconscionable,
against public policy, and unenforceable. Nothing in this
subdivision shall affect the enforceability or validity of any other
provision of the contract.

(e) Any person who seeks to enforce a waiver of any legal right,
penalty, remedy, forum, or procedure for a violation of this code
shall have the burden of proving that the waiver was knowing and
voluntary and not made as a condition of employment.

(f) This section shall apply to any agreement to waive any legal
right, penalty, remedy, forum, or procedure for a violation of this
code, including an agreement to accept private arbitration, entered
into, altered, modified, renewed, or extended on or after January
1, 2016.

(g) In addition to begin insert injunctive relief and end insert any other remedies
available, a begin delete person who violates this section is liable for a civil
penalty not exceeding ten thousand dollars ($10,000) per individual
for each violation of this section and end delete begin insert court may award a plaintiff
enforcing his or her rights under this section end insert reasonable attorney’s
fees.

begin insert

(h) This section does not apply to a person registered with a
self-regulatory organization as defined by the Securities Exchange
Act of 1934 (15 U.S.C. Sec. 78c) or regulations adopted under
that act pertaining to any requirement of a self-regulatory
organization that a person arbitrate disputes that arise between
the person and his or her employer or any other person as specified
by the rules of the self-regulatory organization.

end insert begin insert

(i) This section shall not apply to an employee who is
individually represented by legal counsel in negotiating the terms
of an agreement to waive any legal right, penalty, remedy, forum,
or procedure for a violation of this code.

end insert begin insert

(j) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity shall
not affect other provisions or applications that can be given effect
without the invalid provision or application.

end insert