BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        AB 465|
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                                   THIRD READING 


          Bill No:  AB 465
          Author:   Roger Hernández (D)
          Amended:  8/19/15 in Senate
          Vote:     21  

           SENATE LABOR & IND. REL. COMMITTEE:  4-1, 6/10/15
           AYES:  Mendoza, Jackson, Leno, Mitchell
           NOES:  Stone

           SENATE JUDICIARY COMMITTEE:  5-2, 6/23/15
           AYES:  Jackson, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Moorlach, Anderson

           ASSEMBLY FLOOR:  45-30, 5/14/15 - See last page for vote

           SUBJECT:   Contracts against public policy


          SOURCE:    California Labor Federation, AFL-CIO

          DIGEST:   This bill prohibits any person from requiring another  
          person, with some exemptions, as a condition of employment, to  
          agree to the waiver of any legal right, penalty, forum, or  
          procedure for any employment law violations. This bill prohibits  
          threats, retaliation, or discrimination for refusing to agree to  
          such waiver. This bill requires that any waiver be knowing and  
          voluntary and in writing, and expressly not made as a condition  
          of employment. 

          Senate Floor Amendments of 8/19/15 (1) delete a $10,000 civil  
          penalty that would have been imposed on violators of the  
          provisions and instead provides for injunctive relief in  
          addition to the reasonable attorney's fees; (2) exempt from the  








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          provisions of the bill, a person registered with a  
          self-regulatory organization in the securities industry, as  
          specified, and an employee who is individually represented by  
          legal counsel in negotiating the terms of an agreement; and (3)  
          add a severability clause to the provisions of the bill. 

          Senate Floor Amendments of 7/2/15 specify that an employer  
          cannot require an employee to waive any legal right, penalty,  
          forum or procedure that state or federal law prohibits from  
          being waived. 

          ANALYSIS: 
          
          Existing law:

           1) Specifies that negotiation of terms and conditions of labor  
             should result from voluntary agreement between employer and  
             employees. Further, existing law grants employees full  
             freedom of association, self-organization, and designation of  
             representatives of his own choosing to negotiate the terms  
             and conditions of his employment. 

           2) Provides that any person or agent or officer thereof who  
             coerces or compels any 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 the employment of any such person is guilty of  
             a misdemeanor. 

           3) Establishes the California Arbitration Act (CAA) and the  
             Federal Arbitration Act (FAA) which provide 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.

          This bill: 

           1) Prohibits a person from requiring another person to waive  
             any legal right, penalty, remedy, forum, or procedure for a  
             violation of any provision of 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  







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             entity.

           2) Prohibits a person from threatening, retaliating, or  
             discriminating against another person for refusing to waive  
             any legal right, penalty, remedy, forum, or procedure for  
             violations.  

           3) Provides that 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 the Labor Code shall  
             be knowing and voluntary and in writing, and expressly not  
             made as a condition of employment.

           4) Specifies 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.

           5) Specifies that any person seeking 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) Applies 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.

           7) Provides that in addition to injunctive relief and any other  
             remedies available, a court may award a plaintiff with  
             reasonable attorney's fees.

           8) Exempts from the provisions of this bill, the following: 

              a)    A person registered with a self-regulatory  
                organization as defined by the Securities Exchange Act of  
                1934 or regulations adopted under that act pertaining to  
                any arbitration requirement of the self-regulating  
                organization.  








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              b)    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 labor code. 

           9) Specifies that the provisions of this bill are severable and  
             if any provision 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. 

           10)Makes related legislative findings and declarations  
             regarding rights under the Labor Code.

          Background 
          
          Federal preemption and court decisions on the matter.  
          Arbitration is a form of alternative dispute resolution outside  
          of the judicial court system where a third party reviews the  
          evidence in the case and imposes a decision that is legally  
          binding on both sides and enforceable in the courts.  The FAA (9  
          U.S.C. Sec. 2), originally enacted in 1925 and then reenacted  
          and codified in 1947, states that: "[a] written provision in any  
          maritime transaction or a contract evidencing a transaction  
          involving commerce to settle by arbitration a controversy  
          thereafter arising out of such contract or transaction ? shall  
          be valid, irrevocable, and enforceable, save upon such grounds  
          as exist at law or in equity for the revocation of any  
          contract."  In other words, an arbitration agreement may only be  
          invalidated for the same reasons as other contracts.  
          Additionally, CAA reinforces the federal provisions by clearly  
          stating 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.  In  
          interpreting the FAA and the CAA, the U.S. Supreme Court has  
          declared that by agreeing to arbitrate a statutory claim, a  
          party does not forgo the rights afforded by statute, it simply  
          submits to their resolution in an arbitral, rather than a  
          judicial forum. (Gilmer v. Interstate/Johnson Lane Corp.,  
          500U.S.20(1991))  
           
          In ensuring that any such agreement is legal and fair, the Court  
          has stated that any lawfully mandated employment arbitration  
          agreement must (Armendariz v. Foundation Health Psychcare  







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          Services, Inc. (2000) 24 Cal.4th 83):  

          1)Provide for neutral arbitrators;

          2)Provide for more than minimal discovery;

          3)Require a written award;

          4)Provide for all of the types of relief that would otherwise be  
            available in court; and 

          5)Does not require employees to pay either unreasonable costs or  
            any arbitrators' fees or expenses as a condition of access to  
            the arbitration forum.  
           
          States are permitted to set standards around fair contracting,  
          as well as to protect workers from retaliation to ensure that  
          contracts are agreed to voluntarily. In fact, in 2014, the  
          Legislature passed and the Governor signed AB 2617 (Weber,  
          Chapter 910, Statutes of 2014), enacting these same protections  
          against mandatory waivers of civil rights protections. 

          Controversy over arbitration agreements.  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), a case that 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.  However, some are critical of arbitration  
          agreements which are forced and required as a condition of  
          attaining or keeping employment. Critics argue that forced  
          waivers of workplace claims eliminate important procedural  
          guarantees of fairness and due process that are hallmarks of our  
          judicial system. 
           
          Below is a discussion of some of the criticisms and responses to  
          the use of arbitration (for a more in depth discussion on these,  
          please refer to the Senate Labor and Industrial Relations  
          Committee analysis): 







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          Arbitration and its limitations. Supporters of mandatory  
          arbitration assert that it is a more efficient and less costly  
          manner of resolving legal disputes because they are able 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 have argued that private  
          arbitration agreements differ sharply from the rights and  
          obligations under the Labor Code. 

          The process of arbitration is unregulated and biased.  Critics  
          of private arbitration argue that it is an unregulated industry,  
          which is often costly and unreceptive to consumers.  Consumer  
          advocates view mandatory arbitration as putting consumers and  
          businesses employees on an uneven playing field that creates an  
          inclination by arbitrators to decide cases in favor of  
          businesses.  Among other things, they state that:

           One party (the employer) unilaterally picks its preferred  
            private arbitration company who writes the rules by which the  
            arbitration will be conducted. 

           The pre-selected arbitration company likewise chooses the  
            arbitrators who are made available for the parties to select  
            from. 

           Private arbitrators need not be judges nor are they required  
            to issue written opinions justifying their decisions.
           
          Prior Legislation
          
          AB 2617 (Weber, Chapter 910, Statutes of 2014) provides that a  
          person shall not
          require another person to waive any legal right, penalty,  
          remedy, forum, or 
          procedure for violation of the Ralph Civil Rights Act or the  
          Bane Civil Rights Act 
          as a condition of entering into a contract for the provision of  
          goods and services.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No









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          SUPPORT:   (Verified8/20/15)


          California Labor Federation, AFL-CIO (source)
          American Civil Liberties Union of California
          American Federation of State, County and Municipal Employees
          California Alliance for Retired Americans 
          California Conference Board of the Amalgamated Transit Union
          California Conference of Machinists
          California Employment Lawyers Association
          California Immigrant Policy Center
          California Nurses Association
          California Professional Firefighters
          California Rural Legal Assistance Foundation, Inc.
          California School Employees Association
          California State Council of Laborers
          California State Firefighters' Association
          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 California, IFPTE Local 20
          Entertainment Union Coalition 
          Equal Rights Advocates
          IATSE Local 80
          International Association of Boilermakers
          International Association of Heat and Frost Insulators and  
          Allied Workers
          International Association of Iron Workers
          International Association of Sheet Metal Workers
          International Brotherhood of Electrical Workers
          International Longshore and Warehouse Union
          International Union of Operating Engineers
          Maintenance Cooperation Trust Fund
          Painters and Allied Trades International Union
          Professional and Technical Engineers, IFPTE Local 21
          Service Employees International Union, California
          State Building and Construction Trades Council
          The Wage Justice Center 
          United Association Union of Plumbers, Fitters, Welders, &  
          Service techs
          United Union of Roofers and Allied Workers







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          UNITE-HERE
          Utility Workers Union of America


          OPPOSITION:   (Verified8/20/15)


          Air Conditioning Trade Association 
          Associated Builders and Contractors of California 
          Associated General Contractors 
          Association of California Insurance Companies 
          California Apartment Association
          California Association for Health Services at Home
          California Association of Health Facilities
          California Association of Realtors
          California Bankers Association 
          California Building Industry Association
          California Business Properties Association
          California Citizens Against Lawsuit Abuse 
          California Chamber of Commerce
          California Employment Law Council 
          California Farm Bureau Federation
          California Grocers Association 
          California Hospital Association
          California Hotel and Lodging Association
          California League of Food Processors
          California Manufacturers and Technology Association
          California New Car Dealers Association
          California Newspaper Publishers Association
          California Restaurant Association 
          California Retailers Association
          California Trucking Association
          Civil Justice Association of California 
          Cooperative of American Physicians 
          Motion Picture Association of America 
          National Federation of Independent Business
          Oxnard Chamber of Commerce
          Personal Insurance Association of California
          Rancho Cordova Chamber of Commerce
          Redondo Beach Chamber of Commerce & Visitors Bureau 
          San Diego Regional Chamber of Commerce
          San Jose Silicon Valley Chamber of Commerce
          Securities Industry and Financial Markets Association
          South Bay Association of Chambers of Commerce







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          Southwest California Legislative Council
          Torrance Area Chamber of Commerce
          Valley Industry & Commerce Association 
          West Coast Lumber & Building Materials Association
          Western Electrical Contractors Association 
          Western Growers Association
          Wine Institute


          ARGUMENTS IN SUPPORT: 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 instead  
          submit all claims to the employer's arbitrator. The author  
          argues that forced waivers (including mandatory arbitration) of  
          workplace claims are fundamentally inferior and employers often  
          require them as a condition of employment, which means employees  
          will be fired or not hired if they do not give up their rights  
          to resolve employment claims in a court of law. 


          Further, proponents claim that employers craft the terms of the  
          forced arbitration provisions and typically select the  
          arbitration services providers for the dispute which creates a  
          "repeat player advantage."  Proponents also argue that many  
          times these clauses are buried in the fine print of employment  
          applications, employee handbooks and manuals and 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. Additionally, as these become more common, they 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. 


          ARGUMENTS IN OPPOSITION:     Opponents believe that the FAA and  
          the CAA evidence strong preference for enforcement of  
          arbitration agreements, so long as the underlying contract is  
          fair.  According to opponents, the prohibition sought with this  
          bill directly conflicts with rulings from both the California  
          Supreme Court and the U.S. Supreme Court and, if signed into  
          law, they believe it will be challenged and ultimately found to  
          be preempted as well. They argue that this bill will only serve  







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          to drive up litigation costs increasing individual claims,  
          representative actions and class action lawsuits against  
          employers of all sizes until such legislation can work through  
          the judicial process to be challenged.  


          Opponents argue that adequate protections already exist for  
          mandatory, pre-dispute employee arbitration agreements and that  
          it provides an effective and efficient means to resolve  
          employment-related claims. They cite a 2003 article in the New  
          York University School of Law legal journal regarding employment  
          arbitration which found that arbitration was resolved within a  
          year while litigation usually lasted over two years.


          ASSEMBLY FLOOR:  45-30, 5/14/15
          AYES:  Alejo, Bloom, Bonilla, Bonta, Burke, Calderon, Campos,  
            Chau, Chiu, Chu, Cooper, Dababneh, Dodd, Eggman, Frazier,  
            Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez,  
            Gonzalez, Gordon, Roger Hernández, Holden, Jones-Sawyer,  
            Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian,  
            O'Donnell, Perea, Quirk, Rendon, Ridley-Thomas, Santiago, Mark  
            Stone, Thurmond, Ting, Weber, Williams, Wood, Atkins
          NOES:  Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang,  
            Chávez, Dahle, Beth Gaines, Gallagher, Gray, Grove, Hadley,  
            Harper, Irwin, Jones, Kim, Lackey, Linder, Maienschein,  
            Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson,  
            Steinorth, Wagner, Waldron, Wilk
          NO VOTE RECORDED:  Brown, Cooley, Daly, Rodriguez, Salas

          Prepared by:Alma Perez / L. & I.R. / (916) 651-1556
          8/21/15 13:58:58


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