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The State of California Submits Opening Brief in Appeal Over AB 51 Injunction, Arguing FAA Preemption Does Not Apply

On January 31, 2020, a U.S. District Court preliminarily enjoined the enforcement of Assembly Bill 51 (AB 51) against arbitration agreements governed by the Federal Arbitration Act (FAA).  As enacted, AB 51 would prohibit employers from conditioning employment (including continued employment) or employment-related benefits on an individual signing a mandatory arbitration agreement for disputes arising under the California Fair Employment and Housing Act or the California Labor Code. The State of California (“the State”) appealed the District Court’s decision to the Ninth Circuit Court of Appeals.

On May 18, 2020, the State filed a 66-page opening brief with the Ninth Circuit. The State raises four main arguments, with the thrust being that the District Court erred when it concluded that AB 51 was likely preempted by the FAA.

The State sets forth several arguments regarding why FAA preemption does not apply, with an emphasis on the argument that the AB 51 does not implicate the FAA because the FAA applies to arbitration agreements whereas AB 51 applies to employer policies and practices, particularly practices relating to “forc[ing] workers into waivers as a condition of employment . . .” In other words, the State attempts to draw a distinction between regulating agreements and regulating conduct.

The U.S. Chamber of Commerce is slated to file its Answering Brief on June 17, 2020.

Jackson Lewis P.C. © 2020

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About this Author

Scott P. Jang, Jackson Lewis, wrongful termination lawyer, unfair competition attorney
Associate

Scott P. Jang is an Associate in the San Francisco, California, office of Jackson Lewis P.C. He represents management in all areas of employment law litigation.

Mr. Jang’s practice includes defending management in matters involving claims for breach of contract, discrimination, harassment, retaliation, wrongful termination, and unfair competition. He represents clients in both class action and single plaintiff cases.

Mr. Jang is particularly well-versed in federal litigation. Prior to...

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Sierra Vierra, Jackson Lewis Law Firm, Sacramento, Labor and Employment Litigation Attorney
Associate

Sierra Vierra is an Associate in the Sacramento, California, office of Jackson Lewis P.C. She represents management in civil litigation and administrative proceedings involving employment law matters, including discrimination, harassment, retaliation, wrongful termination, benefits, and a wide range of wage and hour issues. She litigates in federal and state courts, including class and representative actions, and represents employers in administrative proceedings. She also provides preventive advice and counsel on best practices.

Prior to joining Jackson Lewis, Ms. Vierra clerked for the Honorable Joe B. Brown and the Honorable John S. Bryant, United States Magistrate Judges for the Middle District of Tennessee.

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