Arbitration, Preemption, and Labor Code § 229
By Joel M. Grossman
Joel M. Grossman is a mediator and arbitrator with JAMS in Los Angeles. He has been selected four times as one of the Top Neutrals in California by the Daily Journal. For more information please contact www.grossmanmediation.com.
While the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion1is surely familiar to most California labor and employment lawyers, a less familiar preemption case dating back to 1987 also holds that the Federal Arbitration Act2 (FAA) preempts California law, specifically Cal. Lab. Code § 229. That section reads, in full:
In other words, other than in the context of a collective bargaining agreement, a claim by an employee for breach of this "article," which effectively means sections 200 through 244 of the California Labor Code,3 may be filed and litigated in court irrespective of the existence of an agreement to arbitrate all disputes.