Bill
protecting workers from forced arbitration awaits Governor approval
1
Sep 2015 by Curt Surls, Attorney
What
good is a law designed to protect your rights in the workplace if your employer
can coerce you into waiving those rights as a condition of employment?
Not much good at all. But the good news is that a recent bill passed by
the California Legislature will prevent unscrupulous employers from
strong-arming workers into waiving important rights.
AB
465, which is awaiting the Governor’s signature, would ban the practice of
requiring workers to waive any of their rights, forums and procedures
guaranteed by the California Labor Code. The “forum and procedures”
language is critical, because it targets the widespread practice of forcing
employees to sign mandatory arbitration clauses. Ending this abusive
tactic is at the heart of what AB 465 seeks to accomplish.
Arbitration
clauses are everywhere: in credit card agreements, in hospital admission forms,
and in any number of lengthy, legalistic documents you routinely sign without
bothering to read. But arbitration clauses have become especially
prevalent in the workplace. Under current California law, your employer
can fire you if you refuse to agree to submit all of your employment-related
disputes to arbitration.
What’s
wrong with arbitration? Nothing at all, if the decision to arbitrate is
made knowingly and voluntarily by all parties. But coerced arbitration
is inherently unfair to the employee and skews the balance of power further in
the direction of the employer. Instead of having your dispute heard by a
court or state agency – institutions relatively immune to undue influence by
the employer – your case will be decided by an individual paid by the employer,
pursuant to a process designed by the employer or by the arbitration provider
selected by the employer.
Do
you want to go to the Labor Commissioner or other state agency over wage,
working conditions or occupational safety issues? Too bad. You’ve
agreed to private arbitration. Do you want to band together with
co-workers and file a class action to address wage theft, misclassification, or
other issues best decided on a collective basis? Too bad. And if
you’re an immigrant worker with a limited command of English, you may not even
know that you’ve agreed to private arbitration. Again, too bad.
Still enforceable.
But
not if Governor Brown signs the bill. If it becomes law, this bill will
prevent employers from coercing you to waive any right guaranteed by the
California Labor Code as a condition of employment, including your right to
take your employer to court or file a complaint with a government agency.
This
bill doesn’t solve all the problems workers face in the world of mandatory
arbitration since it only applies to Labor Code violations. That means it
does not apply to workplace anti-discrimination provisions, which are part of a
separate Code. You can still be fired for refusing to submit your
discrimination, retaliation or harassment claims to arbitration. For now.
Mandatory
arbitration may be an idea whose time has come and is now, finally,
going. Last year, the California Legislature passed a bill prohibiting
mandatory waivers of the right to go to court for certain “hate crimes.”
President Obama signed an Executive Order prohibiting employers with federal
contracts from requiring their employees to sign mandatory arbitration
clauses. AB 465 is an important next step in what workers’ rights
advocates hope will be the dismantling of the mandatory arbitration machine
employers have constructed.
