Jean K. Hyams, CELA Chair
As CELA Legislative Counsel & Political Director, Mariko Yoshihara, announced in September, Governor Brown signed CELA’s bill to prohibit employers from forcing choice of law/choice of forum clauses on California employees. As you’ll see when you read what follows, this victory proves the point that Jośe Padilla made so eloquently at the 2016 Annual CELA Conference Diversity Outreach Committee Luncheon — There’s no quit in us!
I want to take a moment to acknowledge the important allies who have marched with us to reach this victorious moment, as well as to savor with CELA members the fact that these bills never would have become law without the initiative, persistence and passion of our organization.
Successful workers’ rights legislation always demands the work of coalitions, so first we want to acknowledge the groups that have been at our side. In particular, this year we teamed up closely with CAOC and had strong support from our labor allies.
In my remarks at the Conference, I said that if you ever have said “there oughta be a law,” CELA has a place for you to help advance our legislative agenda. It was not until I went back through emails covering the ten-year history of pursuing this legislative change that I realized how true that statement was.
The idea to prohibit choice of law/choice of forum clauses came to the fore in 2006 at a time when CELA was about to up our game in Sacramento by holding our very first Lobby Day. In his characteristically insightful and humorous style, Scot Bernstein first proposed that we pursue a ban on choice of law/choice of forum clauses in a 2006 email whose subject line was, literally, “There Oughta Be a Law. . .”
David Lowe, who at the time was a CELA Legislative Committee co-chair, took the lead in drafting the bill and in shopping for a legislative author. David successfully pitched the bill to then-Asm. Sandre Swanson and, in the process, made a fateful (for CELA) connection to an up-and-coming legislative staffer named Mariko Yoshihara.
Though we did not yet have any staff in Sacramento, in true CELA style, a core group of committed volunteers pulled off CELA’s first Lobby Day in May 2007. We introduced CELA to scores of legislators and staffers and built on relationships that many CELA members already had with allies like CAOC and Labor.
In 2007, CELA was able to get the choice-of law/choice-of-forum bill through both houses of the legislature. Unfortunately, that first effort met its end when Gov. Schwarzenegger used his veto pen. CELA regrouped and went a second round in 2009, when Mariko’s new boss, Asm. Felipe Fuentes, agreed to carry the bill. Once again, the bill made it to Governor Schwarzenegger’s desk but no further.
By 2011, CELA’s political evolution had taken some giant steps forward. Notably, Mariko Yoshihara had come on board as our newly-minted Policy Director. Added to that big step, more and more CELA members were participating in our Legislative Committee and the committee was fast developing a robust and engaged process to vet bill ideas and recommend a legislative agenda for board approval each year.
Hoping that the third time would be the charm, CELA approached Asm. Swanson to carry the bill again in 2011. We knew it would be a tough push in the economic climate of that year, but as CELA members fanned out to speak to legislators during our fifth Lobby Day, we also knew that CELA was becoming an increasingly well-known and respected advocate for workers in Sacramento. After Governor Brown vetoed the bill that year, we focused on the long game. David Lowe and Scot Bernstein never have flagged in their commitment to see this bill through.
All our years of raising CELA’s visibility paid off this year, when Senator Bob Wieckowski came to us to say that he wanted an organizational partner in bringing a choice-of-law/choice-of-forum bill. As a former plaintiffs’ attorney himself, Sen. Wieckowski was disturbed to see the proliferation of these clauses, particularly in consumer agreements. We worked together to draft language to curb these clauses in both consumer and employment agreements. With that, the bill was reintroduced for the fourth time.
Thanks to key efforts by Scot Bernstein, we even succeeded in persuading Small Business California, an organization representing more than 5,000 small employers in California, to support the bill because of the unfair advantage that choice-of-law and choice-of-forum clauses give to large out-of-state corporations. This drove a critical wedge between small and large employers and helped deflate much of the Chamber’s opposition.
Unfortunately, we ultimately were forced to remove the consumer portion of the bill near the very end of the legislative session because of tough political resistance coming from the Chamber and the banking industry. The final version of the bill, which ultimately was signed by the Governor, ended up looking very much like the original version from ten years earlier.
As you can see, this ten-year history of pursuing this legislative change also describes CELA’s evolution in Sacramento. Our legislative presence began as a volunteer effort by dedicated CELA leaders like Steve Pingel and Cliff Palefsky, who traveled regularly to Sacramento for decades to build relationships with key legislators and press the case for workers’ rights. CELA’s work to make good laws and fight bad ones is now spearheaded by our Policy Director and backed by a robust committee that is dedicated year-round to developing and pursuing the bills that will protect workers and advance their rights.
We should all be proud that CELA has attained its place in the California Capitol.
As we continue to tackle tough issues like forced arbitration, we need to remember that we are in it to win it for the long game. Our bill to stop unethical practices in arbitration may not have succeeded this year, but that will not stop us from continuing to attack the danger of forced arbitration on all fronts in the years to come. We will continue to prove that there’s no quit in us!
Si se puede!