Gerald Sauer in Law 360: Arbitration Is A Flawed Forum That Needs Repair

Arbitration Is A Flawed Forum That Needs Repair

by Gerald Sauer

Arbitration has become a hot-button issue. In September, the U.S. House of Representatives passed the Forced Arbitration Injustice Repeal, or FAIR, Act,[1] intended to ban mandatory arbitration in the workplace, and California enacted A.B. 51,[2] the latest state effort to protect workers from forced arbitration.

The Economic Policy Institute and the Center for Popular Democracy
predict that by 2024, almost 83% of the country’s private, nonunionized
employees will be subject to mandatory arbitration, an increase of 56%
since 2017.

Read full story on Law360


California Consumer Privacy Act (CCPA)

by Gerald Sauer

The new year has brought with it many changes in the law that affect employers and employees in California.  One of those laws, the California Consumer Privacy Act (CCPA), became effective January 1, 2020 and will be enforced starting July 1, 2020.  The law, enacted in 2018, requires for-profit businesses (including most employers) to disclose to consumers (including employees) certain categories of data collected by the business and requires the deletion of data upon request by the consumer. 

Employers are exempt from some of the law’s provisions until January 1, 2021. Here is a guide to help employers determine if the CCPA applies to them and how it will impact their business in the next year:

What is a covered entity?

The CCPA applies to any for-profit business who meets these criteria:

Applicants, employees, and independent contractors have a right to request (1) that the business tell them what personal information it has collected, sold, or disclosed, and to whom; (2) that the business delete their personal information; (3) a copy of the information that has been collected, sold, or disclosed; and (4) to opt out of the sale of their personal information. Employees may not be retaliated against for exercising these rights.

  • Has annual gross revenues in excess of $25 million; OR
  • “Alone or in combination, annually buys, receives for the business’s commercial purposes, sells, or shares for commercial purposes, alone or in combination, the personal information of 50,000 or more consumers, households, or devices;” OR
  • “Derives 50 percent or more of its annual revenues from selling consumers’ personal information.”

A “consumer” is any “natural person who is a California resident,” which includes a “job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or contractor of that business.”


How will this impact covered employers starting January 1, 2020?

  1. Covered employers must provide notice of the type of data collected from their employees and customers and the purpose of the collection. Data is defined broadly to include “professional or employment related information,” “education information,” “identifiers,” “characteristics of a protected category,” “biometric information,” “internet activity,” “inferences drawn regarding a consumer’s preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes,” and “geolocation data.”
  2. A private right of action (on an individual or class-wide basis) allows recovery of statutory damages ranging from $100-$750 per employee per incident for any unauthorized disclosure or access to the data.
  3. Applicants, employees, and independent contractors have a right to request (1) that the business tell them what personal information it has collected, sold, or disclosed, and to whom; (2) that the business delete their personal information; (3) a copy of the information that has been collected, sold, or disclosed; and (4) to opt out of the sale of their personal information. Employees may not be retaliated against for exercising these rights.

Employers do not have to delete data that is maintained solely for internal uses reasonably in line with the purpose for which it was collected (i.e. human resources or other employment-related purposes), or if required to comply with a legal obligation. Given that California employment laws require maintenance of employment records for at least three or four years, the deletion will not be required for most applicant, employee, and independent contractor data otherwise subject to the CCPA’s protections. 

If you have any questions about compliance with the CCPA, please contact us.

Employment Law Update – California’s Prohibition Against Mandatory Arbitration Agreements Remains On Hold

by Gerald Sauer

Last Friday, a federal judge ordered that the temporary restraining order precluding the State of California from enforcing Assembly Bill 51 (“AB 51”), the new law that prohibits mandatory arbitration agreements in the employment context, shall remain in place for now.  The judge initially granted a temporary restraining order on December 30, 2019, just two days before the law was to go into effect.  In addition to extending the stay precluding implementation of the new law, the judge also ordered supplemental briefing to determine if the stay will remain in effect until she rules on the merits of whether the new law is preempted by the Federal Arbitration Act.  At this point, California’s new law remains in limbo, and a final resolution may not occur this year or longer depending upon how quickly it takes this dispute to wind its way through the federal judicial system.      

We will provide updates as the story progresses.  In the meantime, if you have any questions about this latest development, please contact us

Office party precautions: Gerald Sauer’s article for Medium.com

Attend Holiday Party, Kiss Job Goodbye?

by Gerald Sauer

Office holiday parties are loads of fun. Workers let their hair down, engage in wild drinking and dancing, and perhaps end up in spontaneous hookups with coworkers. Let’s be honest: This has been going on for decades, but in years past nobody cared much about the playing around. These days, however, the holiday office party could turn into a legal minefield for corporate managers and executives.

Office flings do lead to long-term commitments — many people meet their life partners in the workplace — but in the post-#MeToo era companies large and small have begun…

Read full story on Medium.com

Sonya Goodwin’s article in Hunton on California’s new arbitration law

California’s Anti-Arbitration Bill Gets Signed Into Law

By Sonya Goodwin & Julia Y. Trankiem on October 29, 2019

Earlier this year, we wrote about a proposed bill in California, AB 51, which would prevent employers from requiring their employees to bring all employment-related claims, including discrimination, harassment, retaliation, and wage and hour claims, in arbitration instead of state or federal court.  Earlier this month, Governor Newsom signed AB 51 into law.

The bill adds a new Section 432.6 to the California Labor Code and Section 12953 to California Government Code (referencing 432.6).  These sections prohibit any person from requiring any applicant for employment or any employee to waive any right, forum, or procedure (via an arbitration agreement or any other method) for a violation of the California Fair Employment and Housing Act (FEHA) or the Labor Code as a condition of employment, continued employment, or the receipt of any employment-related benefit.  While the new law does not prohibit completely voluntary waivers, it specifically states that an agreement that requires an employee to opt out of such a waiver or take any other affirmative action to preserve their rights to a forum is considered a condition of employment, and is therefore unlawful under the statute.

Read the rest at Hunton Employment & Labor Perspectives

1 8 9 10 11 12 16