BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                     AB 465


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          Date of Hearing:  May 6, 2015


                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT


                               Roger Hernández, Chair


          AB 465  
          (Roger Hernández) - As Amended April 30, 2015


          SUBJECT:  Contracts against public policy


          SUMMARY:  Imposes specified restrictions on contractual waivers  
          of rights and procedures under the Labor Code.  Specifically,  
          this bill:


          1)Provides that a person shall not require another person to  
            waive any legal right, penalty, remedy, forum, or procedure  
            for a violation of any provision of the Labor 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.


          2)Provides that 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 the Labor 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.











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          3)Provides that any waiver of any legal right, penalty, remedy,  
            forum, or procedure for a violation of the Labor 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.



          4)Provides that any waiver of any legal right, penalty, remedy,  
            forum, or procedure for a violation of the Labor 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.



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



          6)Specifies that this bill shall apply to any agreement to waive  
            any legal right, penalty, remedy, forum, or procedure for a  
            violation of the Labor Code, including an agreement to accept  
            private arbitration, entered into, altered, modified, renewed,  
            or extended on or after January 1, 2016.











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          7)Provides that in addition to any other remedies available, a  
            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 bill and reasonable attorney's  
            fees.



          8)Makes related legislative findings and declarations
          


          EXISTING LAW:


          1)Establishes the California Arbitration Act which provides that  
            agreements to arbitrate shall be valid, irrevocable, and  
            enforceable, except such grounds as exist at law or in equity  
            for the revocation of any contract.  (Code of Civil Procedure  
            section 1280 et seq.)

          2)Similarly establishes the Federal Arbitration Act (FAA) which  
            provides that agreements to arbitrate shall be valid,  
            irrevocable, and enforceable, except such grounds as exist at  
            law or in equity for the revocation of any contract.  (9 USC  
            Section 1 et seq.) 

          FISCAL EFFECT:  None.  This bill is keyed non-fiscal by the  
          Legislative Counsel.


          COMMENTS:  According to the author and the sponsor, the goal of  
          this bill is to protect workers from being coerced into signing  
          contracts to waive the right to take labor violations to the  
          Labor Commissioner or to court and submit all claims to the  
          employer's arbitrator.  As one of the legislative findings and  











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          declarations contained in the bill states:


            "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."


          Therefore, this bill is designed to ensure that waivers of  
          important employment rights and procedures arising under  
          California law are made voluntarily and with the consent of the  
          employee.


          This bill largely tracks the provisions of AB 2617 (Weber),  
          legislation introduced last year and signed into law by Governor  
          Brown, which imposed specified restrictions on future  
          contractual waivers of rights under the Ralph Civil Rights Act  
          and Bane Civil Rights Act.


          Criticism of Mandatory Arbitration as Essentially Unregulated  
          and Highly Controversial


          In recent years, there have been frequent discussions as to the  
          merits and benefits of mandatory private arbitration as an  
          alternative forum to the civil justice system.  Supporters of  
          mandatory arbitration generally assert that it is a more  
          efficient and less costly manner of resolving legal disputes  
          because they are able to limit discovery, set their own rules  
          for presenting evidence, schedule proceedings at their own  
          convenience, and select the third party who will decide their  
          cases.  

          However, critics of private arbitration have argued that it is a  











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          mostly anything-goes private justice industry which can be  
          costly and is allegedly unreceptive to consumers.  There is  
          little if any regulation, oversight or legal accountability to  
          the parties or the public.

          As a committee analysis of AB 2617 last year described the  
          situation:  

            "Surprisingly to some, arbitrators are not regulated in any  
            fashion; they need not be trained in the law, or even apply  
            the law in a particular dispute, or render a decision  
            consistent with the evidence presented to them.  What evidence  
            is presented may, in fact, be incomplete because parties in  
            arbitration have no legal right to obtain evidence in support  
            of their claims or defenses, or the claims or defenses of the  
            other party, contrary to the longstanding discovery practice  
            in public courts.  Indeed, unlike judges, arbitrators need not  
            explain or defend the rationale for their decisions.  There is  
            no need to justify his or her decision because the law and the  
            evidence need not be followed and because there is no right  
            for any party to appeal or obtain an independent review of the  
            arbitrator's ruling unless the contract expressly so provides.  
             Regardless of the level or type of mistake, or even  
            misconduct, by the arbitrator, the most relief a court may  
            grant to a party in arbitration is to vacate the award and  
            return the parties to further arbitration, perhaps with the  
            same arbitrator or arbitration company.  The grounds on which  
            an arbitrator's decision may be vacated, however, are  
            extremely narrow and the standards for vacatur are stringent.   
            Neither may the parties generally obtain any remedy against  
            the arbitrator for misconduct because arbitrators are afforded  
            substantial if not absolute immunity from civil liability for  
            acts relating to their decisions, even in the case of bias,  
            fraud, corruption or other violation of law."


          In particular, critics of mandatory arbitration point to the  
          following reported limitations of existing law:












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                 Existing law provides that trial by jury is an inviolate  
               right and shall be secured to all.  (Cal. Const. Article 1,  
               Section 16.)


                 Existing law permits arbitrators to disregard the law  
               and/or the evidence in rendering their decisions.  Awards  
               may be enforced by the court, even if they are legally and  
               factually erroneous.  (Moncharsh v. Heily & Blase et al  
               (1992) 3 Cal.4th 1.)


                 Existing law allows private arbitrators to issue binding  
               decisions that are legally enforceable but essentially not  
               reviewable by a court; there is no appeal from an  
               arbitrator's decision to a public court unless the  
               arbitration agreement expressly provides for judicial  
               review.  (Crowell v. Downey Community Hospital Foundation  
               (2002) 95 Cal. App. 4th 730; Cable Connection, Inc. v.  
               DIRECTV, Inc., 44 Cal. 4th 1334 (2008).)


                 Existing law permits enforcement of private arbitration  
               agreements that preclude not only access to the courts but  
               also access to other governmental bodies responsible for  
               enforcing state laws, such as administrative complaint  
               procedures regarding employment laws.  (Sonic-Calabasas A,  
               Inc. v. Moreno, 174 Cal. App. 4th 546 (2009), rev. granted,  
               99 Cal. Rptr. 3d 866 (2009).)


                 Existing law allows arbitrators to conduct arbitrations  
               without allowing for discovery, complying with the rules of  
               evidence, or explaining their decisions in written  
               opinions.  (Code of Civil Procedure Sections 1283.1,  
               1282.2, 1283.4.)













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                 Existing law permits arbitrations to be conducted in  
               private with no public scrutiny.  (Ting v. AT&T (2002) 182  
               F.Supp. 2d 902 (N.D. Cal.), affirmed, 319 F.3d 1126 (9th  
               Cir 2003).)


                 Existing law allows arbitrators substantial if not  
               absolute immunity from civil liability for acts relating to  
               their decisions, even in the case of bias, fraud,  
               corruption or other violation of law.  (Baar v. Tigerman  
               (1983) 140 Cal. App. 3d 979.)


                 Existing law limits the relief that a court may grant to  
               a party in arbitration, no matter what misconduct has taken  
               place in the arbitration, to potential vacatur of the award  
               and returning the parties to further arbitration, perhaps  
               with the same arbitrator or arbitration company.  The  
               grounds on which an arbitrator's decision may be vacated  
               are narrow and the standards for vacatur are high.  (Code  
               of Civil Procedure Section 1282.6.) 


          "Take It Or Leave It" - Mandatory Arbitration in the Employment  
          Context


          The use of mandatory arbitration to settle employment claims has  
          steadily risen since the early 1990s.  In 1991, the United  
          States Supreme Court decided Gilmer v. Interstate Johnson/Lane,  
          Corp., 500 U.S. 20 (1991).  That case involved a suit brought by  
          an employee alleging age discrimination by the employer in which  
          the employer moved to compel arbitration on the basis of a  
          pre-dispute agreement to arbitrate.  In Gilmer, the Court noted  
          that parties may agree to arbitrate statutory claims via an  
          enforceable agreement, thereby explicitly holding that  
          pre-dispute agreements to arbitrate were both legitimate and  
          enforceable.












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          Most commentators point to the Gilmer decision as "opening the  
          floodgates" to the use of mandatory pre-dispute arbitration  
          clauses in employment.  In 2010, 27 percent of U.S. employers  
          reported that they required arbitration of employment disputes -  
          covering over 36 million employees.  This percentage is likely  
          even higher today.


          Critics contend that forced waivers (including mandatory  
          arbitration) of workplace claims are anathema to our public  
          justice system because they eliminate important procedural  
          guarantees of fairness and due process that are hallmarks of our  
          judicial system.  These clauses are often buried in the fine  
          print of employment applications, employee handbooks and  
          manuals.  As a result, it is nearly impossible for an employee  
          to evaluate and make an informed choice about the  
          appropriateness of a resolution mechanism prior to the existence  
          of an actual employment dispute.


          Moreover, mandatory arbitration is generally imposed or required  
          as a condition of employment.  Employers often condition an  
          employee's ability to obtain or keep a job on their "agreement"  
          to submit claims which otherwise could have been presented in  
          the civil court system to arbitration.  In mandatory arbitration  
          situations, an employee's job may depend on accepting such a  
          provision - the only other choice is generally not to take the  
          job.


          Even employees who refuse to sign such clauses face almost an  
          impossible situation.  As one case involving an employee in  
          Alabama has been described:













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            "[Fonza] Luke, a mother of four and a grandmother, started  
            working as a licensed nurse practitioner for Baptist Health  
            Systems (BHS) at its Medical Center in 1971. In November 1997,  
            she was told she must sign a form agreeing to the company's  
            new "Dispute Resolution Program," which relegated employees to  
            arbitration to seek redress for legal claims. Luke did not  
            want to forfeit her rights. Despite twice being told that she  
            would be fired if she did not sign the agreement, she refused  
            to sign it. Three years later, Luke was fired for  
            "insubordination" after almost 30 years of working for BHS  
            with high performance ratings. As a 59-year-old  
            African-American woman, Luke believed she was fired due to her  
            race and age, so she filed claims with the U.S. Equal  
            Employment Opportunity Commission (EEOC) and then in federal  
            court. Even though she had never signed an agreement calling  
            for her to settle disputes in arbitration, BHS asked the  
            federal court to dismiss her court case on the basis of the  
            company's arbitration policy. The federal court said that BHS  
            could force her to arbitrate because she remained in her job  
            after company officials presented the arbitration agreement to  
            her. A federal appeals court ordered her into arbitration.  
            According to her lawyer, it was impossible for Luke to get an  
            unbiased arbitrator. As a result, her claims of discrimination  
            and retaliation were denied, and she got no relief  
            whatsoever."<1>


          The issue has also been highlighted in a recent well-publicized  
          case involving allegations of sexual harassment at American  
          Apparel.  As a recent New York Times story<2> stated:



            "The real lesson from the ouster of Dov Charney at American  
            --------------------------


          <1>  
          http://www.fairarbitrationnow.org/issues/employment-arbitration/
          <2>  
          http://dealbook.nytimes.com/2014/07/15/arbitration-clauses-let-am 
          erican-apparel-hide-misconduct/?_r=1








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            Apparel is the danger of arbitration clauses.



            That may not seem obvious given the bitter battle for control  
            of the retailer and the accusations of sexual harassment.



            But if American Apparel hadn't been able to use arbitration  
            and confidentiality clauses to keep investors and the public  
            in the dark over those accusations, Mr. Charney would most  
            likely have been shown the exit some years earlier?



            ?But had the board not been so aggressive in using arbitration  
            clauses to American Apparel's advantage, it would have been  
            forced to act years sooner.



            The company required that all employees sign agreements  
            requiring them to arbitrate any disputes, including sexual  
            harassment claims.



            The purpose of these clauses was clear: to ensure that any  
            dispute was kept quiet and protect the company from excessive  
            damages. It certainly didn't appear to benefit employees.



            American Apparel required that the entire proceeding -  
            including the outcome - be kept confidential. Employees were  
            also contractually barred from disparaging or otherwise say  
            anything bad about Mr. Charney or American Apparel. As if this  
            were not enough, employees also were required to agree not to  











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            speak to the news media without the approval of American  
            Apparel?



            ?American Apparel's conduct in quieting its sexual harassment  
            problem raises the bigger issue with these clauses. Companies  
            in the United States are rushing to force employees into  
            arbitration over all disputes, particularly those as salacious  
            as sexual harassment. Corporate America has been ably aided by  
            the Supreme Court, which has repeatedly upheld the right of  
            companies to enforce arbitration agreements.



            It would seem to be a big win for companies because they get  
            to easily dispose of frivolous lawsuits and keep quiet more  
            damaging ones. The American Apparel experience shows the  
            consequences - not just for employees, but the companies  
            themselves and their investors."









          


          The "Repeat-Player" Problem


          Another common criticism is that not only is private arbitration  
          effectively unregulated, it is a revenue-driven system where,  
          opponents contend, "repeat players" have unfair advantages when  
          they are involved in mandatory arbitration against "one-shot"  











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          users, such as individual consumers.  In the employment context,  
          employers craft the terms of the forced arbitration provisions  
          and typically select the arbitration services providers for the  
          dispute.  This creates a "repeat player advantage" that favors  
          employers utilizing the same provider to resolve their  
          employment disputes and disadvantages individual employees who  
          are one-time participants in the process.


          Questions of Federal Preemption Under the Federal Arbitration  
          Act


          The Federal Arbitration Act (FAA) (9 U.S.C. Sec. 2) provides  
          that an arbitration agreement shall be valid, irrevocable, and  
          enforceable, except on such grounds as exist at law or in equity  
          for the revocation of any contract.  Opponents have raised  
          concerns that the restrictions on waivers in this bill may be  
          preempted by federal law.  In a coalition letter, they write:


            "The Federal Arbitration Act (FAA) and the California  
            Arbitration Act (CAA) evidence a strong preference for  
            enforcement of arbitration agreements, so long as the  
            underlying contract is fair?  

            ?In 2011, the U.S. Supreme Court in AT&T Mobility LLC v.  
            Concepcion, 131 S.Ct. 1740 (2011) held that the Federal  
            Arbitration Act prohibits states from conditioning the  
            enforceability of an arbitration agreement on the availability  
            of class wide arbitration procedures as such a requirement  
            would be inconsistent with the intent of the FAA.  While the  
            arbitration agreement at issue was included in a sales  
            contract, the ruling has been applied to employment agreements  
            in California.  

            Specifically, in 2013, the California Supreme Court reversed  
            its initial ruling in Sonic-Calabasas A, Inc. v. Moreno, 57  
            Cal.4th 1109, and held an arbitration agreement that requires  











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            an employee to waive his or her administrative "Berman  
            hearing" before the Labor Commissioner is not per se  
            unconscionable and precluding such a waiver would frustrate  
            the intent of the FAA.  Specifically, the Court stated "[i]n  
            light of Concepcion, we conclude that because compelling the  
            parties to undergo a Berman hearing would impose significant  
            delays in the commencement of arbitration, the approach we  
            took in Sonic I is inconsistent with the FAA.  Accordingly, we  
            now hold, contrary to Sonic I, that the FAA preempts our  
            state-law rule categorically prohibiting waiver of a Berman  
            hearing in a predispute arbitration agreement imposed on an  
            employee as a condition of employment." Id. at 1124.  "[T]he  
            fact that arbitration supplants an administrative hearing  
            cannot be a basis for finding an arbitration agreement  
            unconscionable." Id. at 1146 (emphasis added).

            [This bill] directly conflicts with these prior and recent  
            rulings from both the California and United States Supreme  
            Courts, which have consistently stated any state law that  
            interferes with the Federal Arbitration Act is preempted.  We  
            believe [this bill] would ultimately be found to be preempted  
            as well.  However, the time, cost and uncertainty created for  
            all California employers while any legal challenge to [this  
            bill] is pending in the judicial system would be detrimental  
            to businesses and unnecessary."

          Proponents respond that this bill is not arbitration-specific  
          because it applies to any waiver of legal rights or procedures  
          under the Labor Code, regardless of how that waiver is effected.  
           Moreover, supporters note, the bill does not single-out  
          arbitration or other waiver agreements for special encumbrances,  
          but simply recognizes the application of a general contract law  
          principle of unconscionability, just as courts routinely apply  
          this same principle to invalidate some arbitration or other  
          waiver agreements.  In addition, supporters argue, this bill  
          does not bar arbitration or other waiver agreements; it simply  
          makes it unlawful to seek an unknowing and involuntary waiver of  
              rights or procedures regarding labor laws prior to a dispute  
          arising.  Proponents point out that there is no state or federal  











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          policy favoring involuntary waiver or arbitration agreements.   
          If this bill is pre-empted, it would seem that the FAA would  
          logically also then pre-empt courts from applying  
          unconscionability principles to any arbitration or other waiver  
          agreement.



          ARGUMENTS IN SUPPORT





          This bill is sponsored by the California Labor Federation,  
          AFL-CIO, which states:





            "Wage theft and other labor abuses are particularly egregious  
            for immigrant workers but are widespread across industries for  
            so many low-wage workers. Workers are often required to work  
            off the clock, are paid only in tips, or are misclassified as  
            independent contractors and not even paid for all the hours  
            worked. Pervasive labor law violations serve to exacerbate  
            economic inequality and prevent workers from ever getting  
            ahead.





            There are very few remedies available to most low-wage workers  
            when their rights are violated. They can file a claim to the  
            Labor Commissioner or they can find access to counsel through  
            a collective legal action. Yet employers have found a way to  
            circumvent these avenues. Increasingly companies are requiring  











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            workers to sign waivers of the right to take claims to the  
            Labor Commissioner or to court and instead requiring them to  
            take any claims to the employer's private arbitrator.





            The use of mandatory arbitration agreements is increasing  
            dramatically. A recent article in the Wall Street Journal  
            reported that the number of companies that use such agreements  
            has risen sharply from 16% in 2012 to 43% in 2014. As they  
            become more common, we are increasingly seeing them in  
            low-wage workplaces, where immigrant workers who may not even  
            speak the language used in the contract are required to sign  
            as a condition of employment. From port truck drivers to  
            retail workers to car wash workers to janitors, workers across  
            the low-wage economy are being required to sign away their  
            right to engage in collect action or even just rely on state  
            agencies for help without even knowing they have done so. 





            [This bill] would provide some basic protections to these  
            workers. It would require that these agreements be voluntary  
            and not required as a condition of employment. It would  
            require that a waiver of rights be voluntary. Lastly, it would  
            prohibit employers from threatening, retaliating, or  
            discriminating against workers for refusing to sign such a  
            waiver. These are core tenets of contract law and are  
            consistent with the Supreme Court's direction that such  
            contracts should not be entered into under coercion.
















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            [This bill] is modeled on AB 2617 (Weber), passed in 2014 and  
            signed into law, which provided the same protections for these  
            types of waivers involving civil rights. Nothing in this bill  
            undermines the ability of employers or workers to voluntarily  
            enter into arbitration agreements. This bill simply provides a  
            minimal level of protection to keep workers from being coerced  
            into waiving basic rights."





          Similarly, the Consumer Attorney of California states the  
          following in support of this bill:





            "These forced waiver of rights clauses, sometimes referred to  
            as arbitration clauses, should not protect individuals  
            violating our labor laws by shielding their bad acts from the  
            public and subjecting the employees to forced, private and  
            secret proceedings.  Unfortunately, this is exactly what  
            happens when civil claims are settled behind closed doors and  
            then confidentially swept under the rug, leaving not a shred  
            of case law behind for the next victim to utilize when seeking  
            justice.  As stated by Justice Brandeis, "Publicity is justly  
            commended as a remedy for social and industrial diseases.  
            Sunlight is said to be the best of disinfectants"? 

            ?Individuals, especially low and middle income wage earners,  
            who sign these clauses most often, do not know the  
            implications of their waiver. These clauses bar an employee  
            from ever going to court if they have a disagreement with an  
            employer that can't be resolved. Instead, you have to plead  
            your case to an arbitrator that the company usually selects,  
            using rules the company creates. Recent studies have found  
            evidence of arbitrator bias in favor of the employer. One  











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            study found that employers often strategically repeat  
            employer-arbitrator parings in order to obtain successful  
            outcomes, which has resulted in a disproportionately low  
            employee win rate. Nonetheless, such agreements are being  
            forced on individuals with increased frequency without any  
            direction from lawmakers on where to draw the line?

            ..The Supreme Court has recognized private civil lawsuits are  
            often necessary to supplement statutory regulation. These  
            suits have served to alert the legislature to problems that  
            otherwise would go unnoticed, prompted reform in health and  
            safety standards, and led to increased disclosure requirements  
            regarding dangerous products and services. The right to  
            maintain such suits, especially within the context of the  
            rights of employees, should be protected?

            [This bill] will ensure that a contract to waive any of the  
            rights or procedures under the Labor Code is a matter of  
            voluntary consent, not coercion. This is not a sweeping bill,  
            but rather a narrow and specific measure aimed at protecting  
            the employment rights of all Californians." 
           


          Finally, the California Employment Lawyers Association (CELA)  
          states:





            "CELA strongly supports arbitration when it is voluntarily and  
            knowingly agreed upon by the employee post-dispute or pursuant  
            to a collective bargaining agreement negotiated between  
            employers and unions. However, most arbitration agreements  
            today are imposed by employers on employees-it is not  
            voluntary and there is no informed consent by the employee.  
            Moreover, it is virtually impossible for an employee to  
            evaluate and make an educated choice about the appropriateness  











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            of a resolution mechanism prior to the existence of an actual  
            employment dispute.

            Forced arbitration of workplace claims is anathema to our  
            public justice system because it occurs in secret, private  
            tribunals in the absence of accompanying legal safeguards,  
            such as a written record of the arbitration proceedings, the  
            right to appeal the arbitrator's decision if the law is not  
            applied correctly, or other guarantees that ensure a fair  
            process that exist in a court of law. 

            The practice is widespread, affecting every segment of the  
            workforce from minimum wage workers to our nation's service  
            members to highly compensated professionals who are compelled  
            to give up their right to go to court when they believe they  
            have been illegally treated in the workplace in order to get  
            or keep a job.
           
            In 2010, 27 percent of U.S. employers reported that they  
            required forced arbitration of employment disputes-covering  
            over 36 million employees, or one-third of the non-union  
            workforce. This percentage is likely higher today and  
            continues to grow in the wake of court rulings that have  
            misinterpreted the Federal Arbitration Act (FAA), which was  
            enacted in 1925 to regulate voluntary arbitration agreements  
            between commercial parties with equal bargaining power. 

            Arbitration is an appropriate way to resolve disputes when it  
            is knowingly and voluntarily agreed to by the parties after a  
            dispute arises. [This bill] tries to level the playing field  
            so that workers are not forced into a pre-dispute binding  
            arbitration agreement, when the "agreement" was not, in fact,  
            voluntary."
          


          ARGUMENTS IN OPPOSITION













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          In addition to the arguments regarding preemption under the  
          Federal Arbitration Act discussed above, opponents make a number  
          of other arguments against this bill.

          First, they state that adequate protections already exist for  
          mandatory, pre-dispute employee arbitration agreements:

            "Specifically, in Armanderiz v. Foundation Health Psychcare  
            Services, Inc. 24 Cal.4th 83 (2000), the California Supreme  
            Court held that pre-dispute employment arbitration agreements  
            upon which employment is conditioned that encompass unwaivable  
            statutory rights are valid and enforceable as long as the  
            following contractual protections are included:  (1) provide  
            for a neutral arbitrator; (2) no limitation of remedies; (3)  
            adequate opportunity to conduct discovery; (4) written  
            arbitration award and judicial review of the award; and, (5)  
            no requirement for the employee to pay unreasonable costs that  
            they would not incur in litigation or arbitration?  

            ?Arbitration agreements that have not included these mandatory  
            provisions have regularly been struck down as unconscionable.   
            See Wherry v. Award, Inc., 192 Cal.App.4th 1242 (2011), a  
            court deemed an independent contractor arbitration agreement  
            unconscionable where it expanded the right to attorney's fees  
            for FEHA violations to the company and reduced the time to  
            file a FEHA claim from one year to 180 days.  See also Ajamian  
            v. CantorCO2e, L.P., 203 Cal.App.4th 771 (2012) (denying  
            arbitration where terms that required a California independent  
            contractor to pay upfront costs, arbitrate in New York, and  
            waive statutory rights was substantively unconscionable); and  
            Trivedi v. Curexo Technology Corp., 189 Cal.App.4th 387 (2010)  
            (refusing to enforce arbitration agreement that provided a  
            prevailing party an attorney's fee award without imposing  
            limitation of recovery under FEHA).  Accordingly, adequate  
            protections already exist in pre-dispute, mandatory employment  
            arbitration agreements."











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          Second, opponents contend that arbitration provides an effective  
          and efficient means to resolve employment-related claims:
           
            "According to the U.S. District Court Judicial Caseload  
            Profiler, there were 29,312 civil cases filed in California in  
            2014.  As of June 2014, approximately 2,132 cases had been  
            pending in federal court in California for over three years  
            and the median time from filing of a civil complaint to trial  
            in Northern California was 31 months.  Comparatively, a 2003  
            article in the New York University School of Law legal journal  
            authored by Theodore Eisenberg and Elizabeth Hill regarding  
            employment arbitration found that arbitration was resolved  
            within a year while litigation usually lasted over two years.

            A 2006 study by Mark Fellows, Legal Counsel at the National  
            Arbitration Forum, titled "The Same Result as in Court, More  
            Efficiently:  Comparing Arbitration and Court Litigation  
            Outcomes," concluded that consumers and employees actually  
            fare better in arbitration than in court.  Fellows  
            specifically analyzed data from California and found that  
            consumers prevail in arbitration 65.5% of the time, as  
            compared to 61% of the time in court.  In their article,  
            Eisenberg and Hill also found that, aside from civil rights  
            disputes, higher-paid employees' success rate in arbitration  
            was basically the same as in litigation, with equivalent  
            awards.  

            In a presentation to the George Washington University Law  
            School in March 2011, attorney Andrew Pincus also agreed that  
            the national data and evidence available demonstrate that  
            consumers do the same if not better in arbitration than  
            litigation, as one of the largest arbitration providers  
            documented at least 45% of consumer arbitrations result in a  
            damages award, while over 70% of consumer-initiated securities  
            arbitrations result in a recovery to the consumer.  Finally, a  
            recent report in July 2013 published by the Heritage  
            Foundation titled "The Unfair Attack on Arbitration:  Harming  
            Consumers by Eliminating a Proven Dispute Resolution System,"  











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            supported these findings by Fellows, concluding that  
            "[a]rbitration is generally faster, cheaper, and more  
            effective than the litigation system. It is not affected by  
            cutbacks in judicial budgets or the increases in court dockets  
            that significantly delay justice." 

          Therefore, opponents conclude that this bill will send disputes  
          into the overburdened and underfunded judicial system:
          
            "In March 2015, in the State of the Judiciary address, Chief  
            Justice Tani G. Cantil-Sakauye commented that the judicial  
            system is still falling short in its necessary funding, which  
            has resulted in closed courthouses, reduced hours of service,  
            and reduced number of employees.  This funding shortage has  
            significantly increased the length of time to resolve civil  
            lawsuits.  Arbitration is a valuable alternative method to  
            resolve disputes in an efficient manner and should be  
            encouraged.  Instead, [this bill] will force more employment  
            disputes into the already overburdened judicial system,  
            thereby delaying any recovery of potential wages for an  
            employee even longer by essentially banning any predispute,  
            mandatory employment arbitration agreements." 
          














          REGISTERED SUPPORT / OPPOSITION:












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          Support


          American Civil Liberties Union of CA


          American Federation of State, County and Municipal Employees


          CA Conference Board of the Amalgamated Transit Union


          CA Conference of Machinists


          California Employment Lawyers Association


          California Labor Federation, AFL-CIO (sponsor)


          California Nurses Association


          California Professional Firefighters


          California Rural Legal Assistance Foundation, Inc.


          California School Employees Association


          California State Firefighters' Association













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          California Teamsters Public Affairs Council


          CLEAN Carwash Campaign


          Congress of California Seniors


          Consumer Attorneys of California


          Consumer Federation of California


          Consumers for Auto Reliability and Safety


          Engineers and Scientists of CA, IFPTE Local 20


          International Longshore and Warehouse Union


          Koreatown Immigrant Workers Alliance


          Professional and Technical Engineers, IFPTE Local 21


          Service Employees International Union, California


          UNITE-HERE


          Utility Workers Union of America













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          Opposition


          Associated Builders and Contractors of California 


          California Apartment Association


          California Association of Health Facilities


          California Association of Realtors


          California Building Industry Association


          California Business Properties Association


          California Chamber of Commerce


          California Employment Law Council 


          California Farm Bureau Federation


          California Hotel and Lodging Association


          California League of Food Processors


          California Manufacturers and Technology Association











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          California Newspaper Publishers Association


          California Retailers Association


          California Trucking Association


          Civil Justice Association of California 


          National Federation of Independent Business


          Personal Insurance Association of California


          West Coast Lumber & Building Materials Association


          Western Growers Association


          Wine Institute




          


          Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091















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