If I could pass any law this year, I would amend the federal and state constitutions to provide for the right to jury trial in civil cases. Maybe then courts would put an end to mandatory arbitration of employment claims and stop pretending that arbitration is fair for both employers and employees.

Wait, there already is a right to jury trial in the federal and state constitutions. Somehow the courts seem to have over-looked this right, though the language seems straightforward enough. “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,” reads a portion of the Seventh Amendment to the U.S. Constitution. “Trial by jury is an inviolate right and shall be secured to all,” declares Article I, Section 16 of the California Constitution.

Mandatory arbitration poses the single greatest threat to the civil justice system to-day. For years courts have tiptoed around the inherent unfairness and biases of mandatory arbitration, citing alleged benefits such as cost savings and quick resolution. Many of us know from experience that arbitrations often are neither cheap nor quick. We also know that arbitrations favor defendants. That’s why employers increasingly have inserted mandatory arbitration clauses in employment applications and employee handbooks. That’s why employees continue to fight for their constitutional right to a jury trial.

Yet the courts regard this inherent bias of arbitration as a dirty little secret that cannot be acknowledged. If arbitration were fair to both sides, why do employers have to force it on employees rather than giving employees a choice? Wouldn’t most employees readily embrace a dispute resolution system that is fair, inexpensive and quick?

Let’s hope our courts restore the sub-stance of the constitutional right to jury trial and cease enforcing mandatory arbitration clauses forced on vulnerable employees who must choose between working or waiving their constitutional rights.

— Stephen Murphy
Law Offices of Stephen Murphy



The California Legislature should modernize the state’s wage-and-hour law to reflect 21st century workplace realities and make it possible for California employers to more easily comply with the law. For example, the definitions of exempt executives, professionals and administrators rely on an unworkable requirement that more than 50 percent of the employee’s time be spent on exempt duties. The “primary duty” test under federal law is more flexible and adaptable to the changing workplace and should be adopted in California. Similarly, California’s requirements for the timing and measure of the duration of meal and rest breaks are too inflexible and do not work for employers or employees. These should be amended to match the more flexible federal requirements. Making these changes would not impair the rights of employees but would cut off some of the opportunistic class action litigation in California.

Also, the Legislature should modernize and clarify the procedural rules for class actions. These rules should be amended to prevent the abuse of the class action device that has become common. Specifically, courts should be required to engage in more detailed and thoughtful analyses of the facts and the issues from the point of view of both sides. In addition, as a condition of certification, there should be a requirement that the court examine and articulate an actual plan of how the case would be tried as a class action with attention to the rights of all parties in any certifcation order.

Currently there are a number of published and unpublished rulings in which trial court judges have done a superficial analysis of the issues and the facts and have ignored defendants’ rights and defenses. As the party with the burden to demonstrate that a class action is the superior way to try the case, the law should specifically oblige plaintiffs to articulate exactly how the case will be tried as a class action and how that trial plan will be fair to both sides. In addition, the courts should be required to closely scrutinize fees to class counsel in settlements approved by the court. Judges do not do this enough, resulting in grossly disproportionate fees often paid to counsel in wage-and-hour class actions.

— Margaret Hart Edwards
Littler Mendelson

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