President Biden is expected to soon sign into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”), which was recently passed by both houses of Congress. President Biden has long supported measures to limit mandatory arbitration clauses in general and specifically endorsed the Act, which received bipartisan support.
The Act will amend the Federal Arbitration Act to limit every employer’s ability to mandate predispute arbitration of an employee’s claims of sexual harassment or sexual assault. The salient language provides:
Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.
UPDATE: Today, a federal court preliminarily enjoined the enforcement of AB-51 (California’s anti-arbitration law discussed here, here, and here) as it relates to arbitration agreements governed by the Federal Arbitration Association (“FAA”). We will get a detailed order from the court soon, but the minute order issued today is below. A great reminder to employers who wish to implement arbitration that the agreement should always expressly state it is governed by the FAA. Continue reading “Breaking: California Grants Preliminarily Injunction of AB-51”
UPDATE: On December 29, 2019, the U.S. District Court for the Eastern District of California issued an order temporarily enjoining the enforcement of AB 51 (California’s anti-arbitration law discussed here and here) pending resolution of plaintiffs’ motion for a preliminary injunction, highlighting the “likelihood of irreparable injury” to California employers, and noting plaintiffs had “raised serious questions regarding whether the challenged statute is preempted by the Federal Arbitration Act as construed by the United States Supreme Court.”
The court will hear plaintiffs’ motion for a preliminary injunction on January 10, 2020.
As the new year approaches, California employer associations have taken action to prevent Assembly Bill (“AB”) 51 from taking effect. As referenced in this BR Workplace Post, AB 51, signed by Governor Gavin Newsom on October 10, 2019, prohibits mandatory arbitration in cases under the Fair Employment and Housing Act (“FEHA”) and California Labor Code, and also prohibits employers from retaliating against individuals who do not consent to arbitration agreements. AB 51 is in part motivated by the #MeToo movement, and part reflective of California’s ongoing battle against the U.S. Supreme Court’s unwavering support of arbitration. It is designed to ensure employees maintain the right to bring FEHA and wage-and-hour actions in court, rather than forced arbitration as a condition of employment.
As employers across the state stare down the barrel of AB 51, the California Chamber of Commerce filed a Complaint for Declaratory and Injunctive Relief in federal court in California last week seeking to prevent AB 51 from going into effect on the grounds that it is invalid and preempted by the Federal Arbitration Act (“FAA”). The FAA has a long-established policy favoring arbitration as a means for efficient and individualized alternative dispute resolution. The U.S. Supreme Court has also steadfastly refused to allow employees to circumvent the FAA and file actions in court.
The hearing on the motion for preliminary injunction is set for January 10, 2020, nine days after AB 51’s effective date. Only time will tell how the court will rule. In the meantime, employers should contact legal counsel to determine the best, tailored course of action given their specific operations, workforce, and overall risk tolerance.