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Employers Score Another Hit Against AB 51 as Preliminary Injunction Extends Prohibition on Enforcement by State of California

By Charles O. Thompson & Yoon-Woo Nam on February 12, 2020
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In the span of five weeks, a coalition of plaintiffs representing national and state business organizations and employers, including the U.S. Chamber of Commerce and the California Chamber of Commerce, have gone two for two in challenging AB 51 to restore the previous status quo permitting the use of arbitration agreements with their employees. The case is Chamber of Commerce of the U.S.A., et al. v. Xavier Becerra, in his official capacity as the Attorney General of the State of California, et al, United States District Court, Eastern District of California, Case No. 2:19-cv-02456-KJM-DB.

AB 51, signed into law by Gov. Gavin Newsom on Oct. 10, 2019, prohibits California employers from requiring prospective and current employees to “waive any right, forum, or procedure” for a violation of the state’s equal employment opportunity law – the Fair Employment and Housing Act – and Labor Codes. On Dec. 30, 2019, just before it was set to take effect, AB 51 was temporarily restrained from enforcement pending a hearing on the plaintiffs’ preliminary injunction. Then, on Jan. 31, 2020, the chief district court judge of the Eastern District of California granted plaintiff’s preliminary injunction.

In her 36-page ruling granting the preliminary injunction, Chief Judge Kimberly Mueller concluded the plaintiffs met their burden of showing AB 51 is likely preempted by the Federal Arbitration Act. The court initially determined it had jurisdiction over the case before moving to the merits of plaintiffs’ argument. Subsequently, the court acknowledged that with AB 51, the state of California’s primary target is arbitration agreements, which subjects them to unequal footing as compared to other contracts, and places “uncommon barriers on employers” who include mandatory arbitration provisions in their employment agreements. Because AB 51 also imposes civil and criminal penalties, including a misdemeanor punishable by imprisonment and/or fine, that interfere with the Federal Arbitration Act, the court found the federal law preempted it. Finally, the court agreed with plaintiffs that employers would likely be irreparably harmed if AB 51 took effect because they would be forced to choose between risking civil or criminal penalties based on the law’s uncertainties, and not using arbitration agreements to avoid penalties.

The plaintiffs now have substantial momentum in their effort to permanently enjoin the state of California from enforcing AB 51.

Photo of Charles O. Thompson Charles O. Thompson

Charles Thompson is a dynamic and creative trial lawyer serving national and global clients in high-stakes litigation. He focuses his practice on employment litigation and counseling representing clients through all phases of Class Actions and Single Plaintiff cases. Charles has wide-ranging experience litigating

…

Charles Thompson is a dynamic and creative trial lawyer serving national and global clients in high-stakes litigation. He focuses his practice on employment litigation and counseling representing clients through all phases of Class Actions and Single Plaintiff cases. Charles has wide-ranging experience litigating employment-related issues for public and private companies, having handled over 1,000 employment matters for clients ranging from Fortune 500 companies to Silicon Valley startups. He has tried employment, commercial, and professional liability cases to verdict and directed verdict, has litigated and appealed cases from California State Courts to the United States Supreme Court, and is a Fellow of the prestigious College of Labor and Employment Lawyers. His case load includes cutting edge technology companies, air and space and retail.

Charles represents employers in wage and hour cases, as well as EEOC class actions, in state and federal courts across the United States and has broad experience appearing before the California Civil Rights Department, the Division of Labor Standards Enforcement, the Employment Development Department, and the United States Equal Employment Opportunity Commission and the Department of Labor.

In addition to his trial and counseling work, Charles serves as a private and judicial mediator and arbitrator, and has acted as a pro-tem judge upon request of the court. He has broad experience in binding arbitrations and trial. He has taught trial advocacy, diversity, employment cross border conflicts and substance abuse to clients and industry organizations.

Throughout his career, Charles has been a champion for diversity and has served on the Executive Committee of the board of Directors for the Justice & Diversity Center of The Bar Association of San Francisco. He actively supports and promotes diversity efforts and collaborates with clients on diversity issues.

Read more about Charles O. ThompsonEmailCharles O.'s Linkedin Profile
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Photo of Yoon-Woo Nam Yoon-Woo Nam

Yoon-Woo Nam focuses his practice on labor & employment and commercial litigation. He represents employers in wrongful termination, harassment, discrimination, retaliation, wage and hour, and whistleblower claims in state and federal court as well as before state and federal administrative agencies.

Read more about Yoon-Woo NamEmail
  • Posted in:
    Employment & Labor
  • Organization:
    Greenberg Traurig, LLP

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