Thomas

This is an appeal from an order denying a motion to compel arbitration. (Code Civ. Proc., § 1294, subd. (a).) Respondent Kenneth Morgan Thomas sued his former employer, Kidder, Peabody & Company, Inc. (hereafter Kidder, Peabody), and two of its employees, appellants Barclay Perry and James Johnston. Thomas sought to recover a $40,000 commission he alleged is due to him by virtue of an oral contract with Kidder, Peabody and appellants. He sued for breach of contract, seeking damages of $40,000, and for conversion, conspiracy and breach of fiduciary duty, for which he sought additional compensatory and punitive damages.

Appellants moved to compel arbitration pursuant to an agreement respondent signed at the time he was hired by Kidder, Peabody. The trial court denied the motion to compel arbitration, on the ground that under California Labor Code section 229, respondent could maintain this suit notwithstanding his agreement to arbitrate. The court rejected appellants’ contention that California Labor Code section 229 is preempted by the Federal Arbitration Act, 9 United States Code section 1 et seq. In a prior unpublished opinion, we affirmed the trial court’s order.…