McGeorge Adjunct Professor Chris Micheli

Section 1 of the bill provides several uncodified statements of legislative intent. Section 2 of the bill adds a new provision to the law, proclaiming that it is unlawful for an employer to violate Section 432.6 of the Labor Code, which AB-51 is adding to the law. Therefore, any violation of the prohibition regarding pre-dispute arbitration would be deemed an unlawful employment practice, under California’s Fair Employment and Housing Act, which provides a number of remedies for its violation, including injunctive and declaratory relief, punitive damages and attorney’s fees.

Section 3 of AB 51 adds an entirely new section to the Labor Code. The new law essentially prohibits a person from requiring any applicant for employment, or any employee, to waive any right, forum, or procedure, for a violation of any provision of FEHA, or other specific statutes governing employment, as a condition of employment, continued employment or the receipt of any employment-related benefit. This prohibition includes the right to file and pursue a civil action or complaint, or to notify any State agency, other public prosecutor, law enforcement agency, or any court or other governmental entity of any alleged violation of the law.

AB 51 also prohibits an employer from threatening, retaliating, or discriminating against, or terminating any applicant for employment, or any employee, because of his or her refusal to consent to the waiver of any right, forum or procedure for a violation of these statutes that govern employment. In addition, the new law states that an agreement that requires an employee to opt-out of a waiver, or take any affirmative action in order to preserve their rights, is deemed a condition of employment.

In terms of enforcement, in addition to any injunctive relief and any other remedies that are available, the new law provides that a court may award a prevailing plaintiff, enforcing his or her rights under Section 2, reasonable attorney’s fees. Now, there is one exception to this prohibition, and that’s for persons registered with a self-regulatory organization, as defined in the Securities Exchange Act of 1934, or any regulations adopted.

You can a full transcript of today’s post here.