AARP’s brief asks the California Supreme Court to uphold a state law guaranteeing workers the right to bring class actions in fair employment cases
Arshavir Iskanian filed a lawsuit alleging that his employer (CLS Transport) failed to pay overtime, provide meals and rest breaks, reimburse business expenses, provide accurate and complete wage statements, and pay final wages in a timely manner. Iskanian sued on behalf of himself and as a representative of other workers. He sued under California’s Private Attorneys General Act and invoking the state’s Fair Employment and Housing Act (FEHA).
After the U.S. Supreme Court mandated dismissal of consumer class action claims when an arbitration agreement had been signed, CLS moved to dismiss Iskanian’s representative claims and compel arbitration, noting that Iskanian had signed an arbitration clause in his employment contract. If arbitration was not allowed, CLS argued, then workers who are permitted to sue should not be allowed to raise group or class claims.
Arbitration is an out-of-court resolution process designed for business-to-business transactions in which the parties are on relatively equal footing in terms of sophistication and access to resources. However, it is increasingly being found in situations in which the parties are not on such equal footing – in employment contracts, credit card agreements, nursing facility contracts, and other situations where one party wields much greater power and access to resources than the other. Arbitration does not carry the same procedural protections or public process, and can be far more expensive than court proceedings.
AARP’s friend-of-the-court brief filed jointly with the Impact Fund, Equal Rights Advocates and a class of affect workers addresses the U.S. Supreme Court ruling in AT&T Mobility v. Concepcion, and distinguishes that ruling as one that was issued in a consumer case, rather than an employment law case. Workers have different rights under labor laws than consumers, and the applicability of Concepcion in labor law is not valid, argues the brief filed by attorneys with AARP Foundation Litigation. This is particularly true in California, where labor law expressly allowed employees to bring cases as a class in order to allow challenges to systemic discrimination. The California Supreme Court in 2007 ruled in Gentry v. Super. Ct. that rights afforded to Californians under FEHA were not waivable.
The brief asks the state’s highest court to uphold its prior ruling in Gentry and to find that the Concepcion ruling addresses a completely separate area of the law not subject to the same specific protections, legislative history and intent as FEHA.
What’s at Stake
The issue of whether arbitration agreements can override the statutory right to bring representative claims has repercussions for a variety of labor laws, including those that protect against age and disability employment discrimination. Employee litigants are subject to unique risk for retaliation, and when faced with the possibility of losing a job, a worker however wronged, may not be willing to bring a claim on his or her own.
Iskanian v. CLS Transp. of LA is before the California Supreme Court