Seyfarth Synopsis: A divided Ninth Circuit Court of Appeals panel has ruled that the Federal Arbitration Act (FAA) preempts California Assembly Bill 51 (AB 51), which purports to prohibit employers from requiring job applicants and workers from signing arbitration pacts. The panel further concluded that AB 51's criminal penalties are preempted by the FAA. Chamber of Commerce of the U.S. v. Bonta.
Facts
AB 51 subjects employers to criminal misdemeanor charges and civil sanctions for mandating arbitration agreements of certain claims as a condition of employment. The law exclusively focuses on pre-arbitration agreement behavior, but does not bar enforcement of improperly-entered into arbitration agreements.
On December 9, 2019, a collection of trade associations and business groups (collectively, "Chamber of Commerce") filed a complaint for declaratory and injunctive relief against various California officials (collectively, "California"). The Chamber of Commerce sought a declaration finding that AB 51 is preempted by the FAA, a permanent injunction prohibiting California officials from enforcing AB 51, and a temporary restraining order.
The District Court Decision
The District Court granted a preliminary injunction in favor of the Chamber of Commerce explaining that AB 51 criminalizes only contract formation, but the law does not make the arbitration agreement unenforceable. The authors of AB 51 adopted this approach in an attempt to avoid conflict with Supreme Court precedent, which holds that a state rule that discriminates against arbitration is preempted by the FAA.
In essence, in what turned out to be an unsuccessful attempt to avoid FAA preemption, the California Legislature included a provision in AB 51 that an arbitration agreement would be enforceable even if the employer violated the law by making arbitration mandatory. This resulted in the oddity that an employer could be subject to criminal prosecution and civil penalties for requiring an employee to enter into an arbitration agreement, but the agreement would be enforceable once executed.
Consequently, the District Court granted the motion for a temporary restraining order, and after a hearing, issued a minute order granting the motion for a preliminary injunction. The District Court ruled that the Chamber of Commerce was likely to succeed on the merits of its preemption claim because AB 51 "treats arbitration agreements differently from other contracts," and "conflicts with the purposes and objectives of the FAA."
The Ninth Circuit Court of Appeals Decision
The issue on appeal was whether the FAA preempts a state rule that discriminates against the formation of an arbitration agreement, even if that agreement is ultimately enforceable. The panel held that such a rule is preempted by the FAA.
In reaching its decision, the panel applied the principles articulated in U.S. Supreme Court cases Doctor's Assocs., Inc. v. Casaraotto and Kindred Nursing Ctrs. Ltd. P'ship v. Clark. These cases led the panel to conclude that AB 51's penalty-based scheme to inhibit arbitration agreements before they are formed violates the "equal-treatment principle" inherent in the FAA, and is the type of device evincing hostility towards arbitration that the FAA was enacted to overcome. In short, AB 51 is preempted by the FAA because one of the FAA's touchstones is to encourage arbitration, and AB 51 is contrary to this purpose.
In an attempt to save AB 51, California argued that the court could rely on AB 51's severability clause to eliminate AB 51's penalties, and then uphold the surviving portions of AB 51. However, the panel rejected this argument, concluding that all provisions of AB 51 work together to burden formation of arbitration agreements.
The sole dissenting judge (sitting by designation from the Tenth Circuit Court of Appeals), argued that the majority nullified a California law codifying what the enactors of the FAA and the U.S. Supreme Court took as a given: arbitration is a matter of contract and agreements to arbitrate must be voluntary and consensual. In support of this position, the judge distinguished AB 51 from state rules previously preempted by the FAA.
What Bonta Means for Employers
Not only does the decision reinforce the strong federal policy favoring arbitration, but the decision suggests that California will ultimately be required to respect the right of private enterprises to require employees to waive their right to go to court over most disputes arising out of employment.
While this is a positive decision for employers, they should bear in mind that the matter will now return to the District Court for a determination on the merits of the Chamber of Commerce's claims. And, California may seek en banc review of the decision, or request review by the U.S. Supreme Court.
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