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Comment by Pinckney | Hacker News Reader

This is likely to be struck down, as it conflicts with the FAA

https://www.shrm.org/resourcesandtools/legal-and-compliance/...

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.

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."

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.

Thanks. I was just too lazy to look for precedent on it.

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."

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.

It's called severability.

Right, that's what I was thinking of. Thanks.

....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?

Affecting ≠ engaged in

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.

And the Radiolab: More Perfect-podcast episode to explain it for you [1]

[1] https://www.wnycstudios.org/story/one-nation-under-money

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).

What is the meaning of "purely intra-state effect" given Wickard v. Filburn? How could there be a contract with only intra-state effects?

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