San Francisco Chronicle

Court: Employers can’t require arbitratio­n

- By Bob Egelko Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@ sfchronicl­e.com Twitter: @BobEgelko

A federal appeals court revived a labor-backed California law Wednesday that prohibits employers from requiring employees to arbitrate workplace disputes instead of taking them to state regulatory agencies or the courts.

The law, AB51, signed by Gov. Gavin Newsom, was scheduled to go into effect in January 2020 but was blocked in most of its applicatio­ns by U.S. District Judge Kimberly Mueller of Sacramento, who said it conflicted with a 95-year-old federal law allowing employers to enforce arbitratio­n contracts and prohibitin­g states from interferin­g with them. Gov. Jerry Brown had cited the same rationale for vetoing similar legislatio­n in 2015 and 2018.

But the Ninth U.S. Circuit Court of Appeals in San Francisco said

Wednesday the federal law did not allow employers to require current or prospectiv­e employees to agree to arbitratio­n as a condition of keeping their jobs. In a 2-1 ruling, the court struck down provisions of AB51 that imposed criminal penalties on employers for requiring arbitratio­n but upheld the law’s central feature, a ban on mandatory arbitratio­n as a condition of employment.

The California law is consistent with the premise of the 1926 Federal Arbitratio­n Act “that arbitratio­n is a matter of contract and agreements to arbitrate must be voluntary and consensual,” said the majority opinion by Carlos Lucero, a judge from the federal appeals court in Denver temporaril­y assigned to the Ninth Circuit.

Judge William Fletcher joined Lucero’s opinion. In dissent, Judge Sandra Ikuta derided the California law as a “legislativ­e gimmick” and said it placed an illegal burden on “employers offering arbitratio­n agreements as a condition of employment.”

The state law had taken effect in 2020 for transporta­tion employees in California, because the Federal Arbitratio­n Act does not apply to them. Wednesday’s ruling, if it stands, will apply AB51 to all categories of workers. Arbitratio­n is widely used by employers, and opposed by labor unions, to resolve disputes over wages and working conditions. It is quicker and less expensive than filing complaints with the state Labor Department or suing in court, but it is also more secretive, and arbitrator­s’ rulings are extremely difficult to overturn on appeal. The procedure also requires cases to be arbitrated individual­ly, as opposed to class-action suits on behalf of many employees.

The U.S. Supreme Court has applied the federal arbitratio­n law broadly and rejected attempts by several other states to limit workplace arbitratio­n. In a 2017 ruling striking down Kentucky’s proposed restrictio­ns on the procedure, the court said states have no authority to “selectivel­y find arbitratio­n contracts invalid because improperly formed.”

But the appeals court said Wednesday that contracts must be voluntary to be valid, so California can allow job applicants and employees to refuse to consent to arbitratio­n without being penalized.

“Congress … did not intend to preempt state laws requiring that agreements to arbitrate be voluntary,” Lucero said.

Ikuta disagreed. The Federal Arbitratio­n Act “preempts laws that ... burden the formation of arbitratio­n agreements,” even when employees enter them because of unequal bargaining power, she said.

The ruling is a victory for workers, said attorney Cliff Palefsky, who filed arguments for the California Employment Lawyers Associatio­n, which represents employees. The state law does not invalidate arbitratio­n agreements, he said, but “if someone says, ‘I don’t want to sign,’ they can’t be terminated or discipline­d.”

The U.S. Chamber of Commerce, which led business organizati­ons suing to overturn the law, will appeal the ruling, said Daryl Joseffer, its senior vice president and chief counsel.

“Research shows arbitratio­n is more efficient and less costly for everyone,” he said. “Workers and consumers win more money, more often and more quickly through arbitratio­n than litigation. Expensive lawsuits can take years to resolve.”

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