ATTORNEY DOUGLAS W. DAVIS OPINES ON EMPLOYEE WAIVERS OF CLASS ACTIONS CAUSES OF ACTION

FOR IMMEDIATE RELEASE
Malibu, California, United States of America (Free-Press-Release.com) November 29, 2011 -- Whether employers can force employees to waive class actions suits is still questionable in California. While the U.S. Supreme Court in AT&T Mobility LLC v. Concepcion suggested that a waiver of class action suits may be valid, California Courts are not enthralled with the concept as of yet.

In AT&T, the U.S. Supreme Court held that the conditioning of the enforceability of an arbitration agreement on the absence of onerous terms, even a matter of public policy undercuts the Federal Arbitration Act. In other words, even in cases where a Court, as the California Supreme Court decided in this case, that the waiver of class action causes of actions by consumers violated public policy, the state court action is preempted by the Federal Arbitration Act.
The California Courts, including The California Supreme Court and the Ninth Circuit decided that the waiver of class action causes of action violated public policy and as such was invalid. Although the FAA preemption argument applied in AT&T concerned a consumer contract, arguably it could apply to an employment arbitration clause as well.

The U.S. Supreme Court held in AT&T that there were other means available to insure that consumers could recover damages aside from a classic class action. AT&T allowed each consumer to recover up to $7500 in their own actions. If employers allowed employees other options such as these Courts may allow class action waivers in employment arbitration agreements. However employers must comply with the essential provisions set forth in Amendariz v. Foundation Health which are mutuality, employer responsibility for arbitrations costs, the availability of remedies such as individual actions and a means employer’s attempt for discovery.
Absent employers following the provisions of Amendariz, California courts will subject waivers such as a class action waiver to close scrutiny and in cases that are not subject to the Federal Arbitration Act, employers will find tough sledding.

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