AB51, California’s Law Against Mandatory Employee Arbitration Agreements, is Invalidated

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California employers – especially those that required employees to sign arbitration agreements – have reason to celebrate. On February 15, 2023, the United States Ninth Circuit Court of Appeals in Chamber of Commerce v. Bonta, (Case No. 20-15291) 2023 WL 2013326 (9th Cir. Feb. 15, 2023), ruled that AB 51, a California law effectively prohibiting and criminalizing mandatory arbitration provisions in employment agreements, is invalid because it is preempted by the Federal Arbitration Act (FAA).

This development was not unexpected, as the U.S. Supreme Court has rendered a series of decisions supporting arbitration and striking down state laws prohibiting arbitration clauses in employment contracts as violations of the FAA. Yet despite this precedent, the California legislature has tried time and time again to enact anti-arbitration laws that creatively seek to avoid FAA preemption. AB 51 was the most recent attempt to circumvent the FAA.

AB 51 added California Labor Code Section 432.6, which prohibited employers from: (1) requiring employees to waive, as a condition of employment, the right to litigate certain claims in court; and (2) retaliating against applicants for employment or employees based on their refusal to waive such rights. Id. at (a) & (b). These two prohibitions by themselves would almost surely be preempted by the FAA but the California legislature sought to avoid that result by adding § 432.6(f), providing that nothing “in this section is intended to invalidate a written arbitration agreement that is otherwise enforceable under the [FAA].” To give the statute teeth, AB 51 also amended other codes to impose civil and criminal liability on an employer who violates Labor Code Section 432.6. Together, these provisions had the strange effect of imposing criminal and civil liability on employers who enter into arbitration agreements that are valid and enforceable.

The Chamber of Commerce of the United States filed a lawsuit seeking to declare that AB 51 was preempted by the FAA. In 2020, the trial court granted temporary injunctions against enforcement of AB51, because the court found that the Chamber of Commerce was likely to succeed in establishing that AB51 is preempted by the FAA. For that reason, employers did not feel the brunt of AB51 while the challenge made its way through appellate court.

The Ninth Circuit Court of Appeals (after some unusual twists, including a published decision that was later withdrawn by the Court) ultimately agreed with the trial court. The Ninth Circuit held that although AB 51 does not expressly prevent the formation of employment contracts containing an arbitration provision, it clearly disfavors the formation of arbitration agreements by placing civil and criminal liability on employers who require employees to sign arbitration agreements. That kind of penalty is an exception to generally applicable law that allows employers to require agreements, such as confidentiality agreements, as a condition of employment. The Ninth Circuit noted that the Supreme Court has held that “state rules that burden the formation of arbitration agreements stand as an obstacle to the FAA.” Kindred Nursing Centers Ltd. Partnership v. Clark, 137 S.Ct. 1421, 1423 (2017). In addressing AB 51’s strange mechanism of imposing liability for the formation of valid contracts, the Court held that that “[a] state rule interferes with arbitration if it discriminates against arbitration on its face or if it covertly accomplishes the same objective by disfavoring contracts that have the defining features of arbitration agreements.” Id. The Court held that “[b]ecause the FAA’s purpose is to further Congress’s policy of encouraging arbitration, and AB 51 stands as an obstacle to that purpose, AB 51 is preempted.” Id., at *10.

California employers should welcome this decision. The decision clarifies that businesses have broader freedom to contract as they see fit, and that it is permissible, even in California, to require employees to sign mandatory arbitration provisions as a condition of employment. The overall perception is that arbitration results in faster, less expensive resolution of employee-employer disputes, and keeps employment disputes out of California courts. Still, there are other schools of thought that believe that employment arbitrations can be more expensive for employers than the courts because private arbitrators often charge high hourly rates, the fees and costs of the arbitration must be advanced by employers, and dispositive motion victories (for example, a successful motion to dismiss a frivolous claim) are less common in arbitration. As well, even if arbitration is enforceable some employees may file their claims in court in the hope that the employer fails to take action to enforce arbitration.

Moreover, there are important limitations on employment arbitration agreements in California. In Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal.4th 83 (2000), the California Supreme Court held that employer-employee arbitration agreements may be “unconscionable” and unenforceable if they do not include provisions for: (1) a neutral arbitrator; (2) all remedies allowed under statutes; (3) adequate discovery procedures; (4) a written and well-reasoned arbitration decision; and (5) the employer’s payment of all costs unique to the arbitration process itself.

It is predictable that the same labor groups that supported AB 51 will continue to try to develop alternative measures to restrict employment arbitration agreements. Employers are well-advised to consult with well-qualified employment attorneys to stay on the right side of the rapidly changing laws. The attorneys at the Conkle firm stay abreast of developments and are well equipped to help your business navigate all aspects of wage & hour, discrimination, class actions, Private Attorney General (PAGA) claims and employment law, including the intersection of employment arbitration and litigation. Conkle, Kremer & Engel attorneys have many years of experience drafting arbitration provisions in conformance with California law and handling employment disputes—whether in arbitration or litigation.

Amanda Washton and Alec Pressly

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Timed Out vs Youabian: The Conkle Firm Establishes that the Right of Publicity is an Assignable Property Right

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It is virtually impossible to get through a day without seeing the “right of publicity” in action.  Everywhere, there are advertisements featuring photographs of professional models and celebrities of every variety published to sell all types of products and services.  It is strange, then, that no statute or case precedent in California specifically established that models and celebrities have the ability to assign or license those publicity rights for proper use and for enforcement if their likenesses are misused.  Until now.

On September 12, 2014, the California Court of Appeal agreed with the arguments of Eric Engel of the Conkle Firm (working with co-counsel at Hall & Lim), and established the first published precedent in California that explicitly holds that the right of publicity is assignable.  In Timed Out, LLC v. Youabian, Inc., Case No. B242820, the Second District Court of Appeal finally settled a long-simmering dispute that had confused many lower courts:  Whether the right of publicity is a “personal right” that can only be exercised during lifetime by the individual owner, or whether the right of publicity is a form of intellectual property that can be freely assigned and licensed to others for use and enforcement.

The dispute had its origin many years ago, when an influential tort law treatise by famed Professor Prosser observed that the right of publicity historically derived from the “right of privacy.”  The classic form of the “right of privacy” is protection against hurt feelings and injury to personal reputation that can occur when personal information about a private individual is published without her consent.  That type of injury is considered personal in nature and cannot generally be assigned.  But, as the Timed Out decision observed, the right of publicity has evolved away from its origin into a distinctly commercial and non-personal interest.

The right of publicity is now virtually the opposite of the original right of privacy:  The right of publicity is the ability of a person to control the commercial value of the use of her image and information.  Timed Out recognizes that a person’s likeness, voice, signature or other identifying characteristics can have substantial commercial value, regardless of whether the person is a celebrity and regardless of whether the commercial value of the identified person’s “persona” is created by happenstance or by investment of great time and effort.  Timed Out finally establishes that the value created is a form of property, freely assignable by the person who owns it.

The Court of Appeal also resolved a separate important issue that is frequently in dispute in right of publicity actions:  Whether federal copyright law subsumes and preempts right of publicity claims.  Timed Out v. Youabian established that the right of publicity is distinct from copyright interests in a photograph or image, and that right of publicity claims generally are not preempted by federal copyright laws.

The effect of Timed Out LLC v. Youabian, Inc. for models, celebrities, manufacturers, advertisers and resellers is to finally establish that the right of publicity can be licensed and assigned to third parties, and enforced by third parties such as Timed Out, and that such rights are independent of federal copyright interests.  That means models and celebrities no longer have to make the difficult decision whether it is worth their time, expense and effort to pursue claims when their publicity rights are violated – they can assign the affected publicity rights to agencies such as Timed Out to pursue the claims.  Manufacturers, advertisers and resellers will no longer waste effort and time attempting to determine whether the publicity rights were assignable.  They can and should instead focus on establishing whether they had the necessary rights to use the image, photograph, likeness, voice or other identifying characteristic of the “persona” of the model or celebrity.  This puts a premium on making sure that any “model releases” obtained prior to advertising are well-written and appropriate for each particular use of the model or celebrity’s photograph, image, likeness or other identifying features.

Conkle, Kremer & Engel counsels and helps clients avoid these kinds of issues with effective model releases, licenses and assignments.  Timed Out v. Youabian demonstrates that CK&E is also at the forefront of enforcing the right of publicity when model and celebrity rights are violated.

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Could a Pending Federal Safe Cosmetics Act Preempt the California Safe Cosmetics Act?

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After nine years, the California Safe Cosmetics Act is suddenly in the news, now that the California Safe Cosmetics Program Product Database has been posted for the public.  The California Safe Cosmetics Act requires manufacturers of cosmetic products to be sold in California to report any ingredients in their products that have been identified to the California Department of Public Health as causing cancer or reproductive toxicity.

While no federal counterpart to the California Safe Cosmetics Act presently exists, legislation to amend Chapter VI of the Federal Food, Drug and Cosmetic Act (FD&C Act or FDCA, 21 U.S.C. § 361 et seq.) has been introduced in every session of Congress since 2010.  The latest version of the bill, the Safe Cosmetics and Personal Care Products Act of 2013, seeks to ensure the safe use of cosmetics by creating a uniform system of registration of cosmetic companies, set national safety standards for cosmetic ingredients, and provide recall authority.  The bill was proposed March 21, 2013 (H.R. 1385, sponsored by Rep. Janice D. Schakowsky (D. Ill.)), and remains pending during the 2013-2014 legislative session. It remains an open question whether any finally enacted federal law regulating cosmetics ingredient safety may preempt state authorities’ regulation in the same area.  That is an issue in which the Personal Care Products industry should be keenly interested.

Conkle, Kremer & Engel lawyers keep abreast of developments in regulatory compliance matters to help clients proactively create and execute plans to remain competitive while meeting their compliance requirements.

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