Ban on required workplace arbitration among labor-backed bills headed to governor

Employee advocates and plaintiffs’ lawyers began the legislative year with the expectation that Gov. Gavin Newsom might sign several pending workplace bills — including some ideas vetoed by his predecessor, Jerry Brown.

They’ll soon find out. The Senate passed several employment-related bills this week on mostly party-line votes.

The most notable of these might be AB 51, banning arbitration agreements as a condition of employment, which passed Thursday by a single vote. It now heads to Newsom’s desk.

The debate around AB 51 grew so heated that the senator running the floor session at the time, Sen. Scott Wilk, R-Santa Clarita, warned his colleagues that things had gotten “a little bit chippy” and they should tone down the personal attacks.

AB 51, according to the latest Senate analysis, “prohibits requiring applicants for employment or employees to waive their right to a judicial forum as a condition of employment or continued employment.” Supporters say the measure will prevent companies from covering up systematic sexual harassment and other abuses by keeping these matters out of the courts.

Brown nixed a similar measure, AB 3080, last year, writing in a veto message that it was “plainly” preempted by the Federal Arbitration Act.

Sen. Jeff Stone, R-La Quinta, picked up this theme, declaring, “If we pass AB 51, it will be inevitable it will face litigation.”

Stone also repeated an argument raised by several other Republican legislators: that the bill will harm low-income workers by forcing them into the court system, where they won’t be able to afford attorneys.

Sen. Hannah-Beth Jackson, D-Santa Barbara, who was presenting the bill on the floor, scoffed at these objections.

“As a lawyer myself, one who practiced law for 22 years, I find myself somewhat frustrated by hearing from the senator, whose expertise as a pharmacist I do not question but whose legal skills I do,” Jackson said in reference to Stone.

Jackson noted the bill does not change the burden of proof in civil workplace harassment or discrimination claims, and she said California has some of the strongest protections against frivolous lawsuits in the nation. She also all but welcomed the coming court fights over AB 51.

“Suffice it to say, if there’s a Constitution issue, it will be raised in court,” Jackson said.

The Senate also approved two bills inspired by the #metoo movement in mostly partly-line votes Wednesday afternoon. Both are backed by the Consumer Attorneys of California and authored by Assemblywoman Eloise Gomez Reyes, D-Grand Terrace, an attorney.

AB 9 would extend the time to file harassment and discrimination claims under California’s Fair Employment and Housing Act from one year to three. Proponents say this is needed because many workers, especially low-income ones, don’t know their legal rights or are too frightened to come forward quickly.

AB 1510 would create a specific statute of limitations carve-out for victims abused by a school physician such as USC gynecologist George Tindall. It revives claims for abuse that took place “at a student health center” between 1988 and 2016. An amendment added last week limits the effects to claims in excess of $250,000. USC has opposed the bill, saying it is not needed because all claims are being fully compensated under a settlement agreement.

All three bills must head back to the Assembly to win approval for amendments added in the Senate, but aren’t expected to face significant opposition.

Not everything went the way of pro-employee groups. The Senate rejected another Reyes bill on Tuesday. AB 170 would make employers potentially liable for abuses committed by contractors they employ. It did not receive the required 21-vote majority, but was granted reconsideration and could still pass this year, possibly in amended form.

The bill drew the ire of Republican members, several of whom identified themselves as business owners. Sen. Andreas Borgeas, R-Fresno, an attorney, said the bill undercut one of the main premises of employer liability in workplace cases, that the employer “knew or should have known” about illegal activity by managers.

“I think this might be going in an unintended direction,” Borgeas added. “We could be discouraging businesses from hiring contractors.”

One of the bill’s proponents, Sen. Maria Elena Durazo, D-Los Angeles, said, “This bill seeks to protect our vulnerable low wage workers, who are often women, women of color, immigrant and those who are most in need of protection from harassment in the workplace.” She is a former executive secretary-treasurer of the Los Angeles County Federation of Labor.