Just how far can you go in drafting a California arbitration provision for employer/ employee disputes? This is important information for HR professionals.
Under the California Armendariz decision, the employee must be given the same rights in arbitration as they would have in litigation. But for most companies, there are some exceptions. Waiving the right to consolidate or have a class-action in arbitration is one. This is allowed by the US Supreme Court in ATT Mobility vs. Conception 131 S. Ct. 1740, 1750 (2011).
An agreement can also waive a jury trial. The argument is that arbitration, for example through the American Arbitration Association, almost never can provide for a jury trial. In other words, it is the nature of arbitration not to have a jury. It’s just not set up for that. So you probably will get by with this exception.
Examples of what rights cannot be waived would be damages for emotional distress, punitive damages, injunctive relief, declaratory relief or other examples.
An HR consultant should also know about a waiver of the employee being able to bring an action as a private attorney general under California Labor Code Sections 2698 – 2699.5 (for example penalties for over time etc., in which the employee brings the action on their behalf as well as others)? This is not allowed because of the California case of Iskanian vs. CLS Transportation, 59 Cal.4th 348 (2014) which prohibits such a waiver. But you can include the following provision:
A mutual agreement to arbitrate claims also means that both you and the Company forego any right either may have to a jury trial on claims relating in any way to your employment, and both you and the Company forego and waive any right to join or consolidate claims in arbitration with others not signatory or to make claims in arbitration as a representative or as a member of a class or in a private attorney general capacity, unless such procedures are agreed to by both you and the company.
www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.
HR Consulting Network 