5 ms·

This is likely to be struck down, as it conflicts with the FAA https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/califo

This is likely to be struck down, as it conflicts with the FAA https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/california-arbitration-bill-sexual-harassment.aspx https://www.shrm.org/resourcesandtools/legal-and-compliance/...

rayiner 8y ago
Maybe. To the extent a case involves a purely intra-state contract (e.g. your typical employment contract), it might be viable. I’d argue it’s unconstitutional to apply the FAA to a preempt state contract law that has purely intra-state effect.
- DannyBee 8y ago
  If they force california companies to do this to out of state employees, for sure they'd lose that argunment. The interesting provision of the FAA is this one: " but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."
  - marcoperaza 8y ago
    There was a case about that provision, Circuit City v. Adams, and it was held that it only works to exclude transportation workers from the FAA. By the legal maxim ejusdem generis, a catch-all provision, like "any other class..." here, is generally interpreted to only include things of the same kind as the previous items in the list. Edit: I had some commentary about the case here, but upon a closer read of the majority and dissenting opinions, it's really not as clear cut as I thought. There's plenty of good reasons to agree or disagree with what the Court did in Circuit City.
    - DannyBee 8y ago
      Thanks. I was just too lazy to look for precedent on it.
  - KirinDave 8y ago
    The way this works is the same for nocompetes. They still put the language in your employment contract, but stipulate that the unenforceable bits (which they don't name) don't invalidate the entire contract. That way, out-of-state contractors can still have less rights; don't worry! Of course, we might see Californian companies simply give up the practice. Your post did conjure in my mind the delightful image of an angry out-of-state contractor shouting into the phone, "Why do I have so many rights?! Why aren't I railroaded by arbitration? Why can't I be locked into a one-sided non-disparage agreement because some executive slid his hand into my pants? I'm furious at all my options here! While I'm at it, I demand you enforce a no-compete clause."
    - emodendroket 8y ago
      It's standard practice to include language about how some portions of a contract bring invalid doesn't invalidate the rest of the document just about everywhere, I think.
      - fmajid 8y ago
        It's called severability.
        emodendroket 8y ago
        Right, that's what I was thinking of. Thanks.
  - onetimemanytime 8y ago
    ....or any other class of workers engaged in foreign or interstate commerce." Not a lawyer, but doesn't a FB engineer writing FB App code from CA affect foreign and intrastate commerce?
    - pc86 8y ago
      Affecting ≠ engaged in
- marcoperaza 8y ago
  Almost nothing is "purely intra-state" commerce, even growing weed in your own backyard for your own personal use (see the--I think absurd--decision in Gonzalez v. Raich). I agree with you that this is unfortunate. You're a lawyer and you know all this, but for the rest of the HN crowd: an extremely broad definition of "interstate commerce" has applied since the New Deal era when the Supreme Court folded to immense pressure from the FDR administration and stopped striking down his New Deal programs. This generally favors the left, by allowing more regulation by the federal government. But it can work the other way; like here, for example, by allowing the Federal Arbitration Act to apply very broadly.
  - wjnc 8y ago
    And the Radiolab: More Perfect-podcast episode to explain it for you [1] [1] https://www.wnycstudios.org/story/one-nation-under-money https://www.wnycstudios.org/story/one-nation-under-money
  - rayiner 8y ago
    The Supreme Court has pulled back on that though in recent years. E.g. finding the individual mandate invalid as an exercise of the commerce clause (but valid as an exercise of the taxing clause).
- thaumasiotes 8y ago
  What is the meaning of "purely intra-state effect" given Wickard v. Filburn? How could there be a contract with only intra-state effects?

rayiner 8y ago

Maybe. To the extent a case involves a purely intra-state contract (e.g. your typical employment contract), it might be viable. I’d argue it’s unconstitutional to apply the FAA to a preempt state contract law that has purely intra-state effect.

DannyBee 8y ago
If they force california companies to do this to out of state employees, for sure they'd lose that argunment. The interesting provision of the FAA is this one: " but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."
- marcoperaza 8y ago
  There was a case about that provision, Circuit City v. Adams, and it was held that it only works to exclude transportation workers from the FAA. By the legal maxim ejusdem generis, a catch-all provision, like "any other class..." here, is generally interpreted to only include things of the same kind as the previous items in the list. Edit: I had some commentary about the case here, but upon a closer read of the majority and dissenting opinions, it's really not as clear cut as I thought. There's plenty of good reasons to agree or disagree with what the Court did in Circuit City.
  - DannyBee 8y ago
    Thanks. I was just too lazy to look for precedent on it.
- KirinDave 8y ago
  The way this works is the same for nocompetes. They still put the language in your employment contract, but stipulate that the unenforceable bits (which they don't name) don't invalidate the entire contract. That way, out-of-state contractors can still have less rights; don't worry! Of course, we might see Californian companies simply give up the practice. Your post did conjure in my mind the delightful image of an angry out-of-state contractor shouting into the phone, "Why do I have so many rights?! Why aren't I railroaded by arbitration? Why can't I be locked into a one-sided non-disparage agreement because some executive slid his hand into my pants? I'm furious at all my options here! While I'm at it, I demand you enforce a no-compete clause."
  - emodendroket 8y ago
    It's standard practice to include language about how some portions of a contract bring invalid doesn't invalidate the rest of the document just about everywhere, I think.
    - fmajid 8y ago
      It's called severability.
      - emodendroket 8y ago
        Right, that's what I was thinking of. Thanks.
- onetimemanytime 8y ago
  ....or any other class of workers engaged in foreign or interstate commerce." Not a lawyer, but doesn't a FB engineer writing FB App code from CA affect foreign and intrastate commerce?
  - pc86 8y ago
    Affecting ≠ engaged in
marcoperaza 8y ago
Almost nothing is "purely intra-state" commerce, even growing weed in your own backyard for your own personal use (see the--I think absurd--decision in Gonzalez v. Raich). I agree with you that this is unfortunate. You're a lawyer and you know all this, but for the rest of the HN crowd: an extremely broad definition of "interstate commerce" has applied since the New Deal era when the Supreme Court folded to immense pressure from the FDR administration and stopped striking down his New Deal programs. This generally favors the left, by allowing more regulation by the federal government. But it can work the other way; like here, for example, by allowing the Federal Arbitration Act to apply very broadly.
- wjnc 8y ago
  And the Radiolab: More Perfect-podcast episode to explain it for you [1] [1] https://www.wnycstudios.org/story/one-nation-under-money https://www.wnycstudios.org/story/one-nation-under-money
- rayiner 8y ago
  The Supreme Court has pulled back on that though in recent years. E.g. finding the individual mandate invalid as an exercise of the commerce clause (but valid as an exercise of the taxing clause).
thaumasiotes 8y ago
What is the meaning of "purely intra-state effect" given Wickard v. Filburn? How could there be a contract with only intra-state effects?