CA Court Issues Decision Upholding Arbitration Agreement

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An Arbitration agreement is a common part of many employment contracts. These clauses keep employers from having to fight court and generally save larger companies a substantial amount of money. However, these clauses are not necessarily good for employees. By signing an arbitration agreement, the employee gives up most of his or hers rights to file a lawsuit in court and agree to pursue all claims in arbitration instead.

There are many disadvantages to arbitration for employees. First, there is no jury in an arbitration, and juries are usually sympathetic to individuals who were harassed or discriminated against by their employers. Next, the arbitration process frequently limits the amount of discovery available to each side. This often works against the employee, who has less access to the employer’s documents, emails, and other files. Finally, the decision made by the arbitrator is usually not appealable – if the employee disagrees with the decision, there is little recourse.

On March 28, 2016, the California Supreme Court decided the case of Baltazar v. Forever 21, involving an arbitration agreement between an employee and a clothing company. In the case, Maribel Baltazar signed an arbitration agreement as part of her employment contract with clothing store Forever 21. Baltazar quit her job after alleging that she experienced racial and sexual discrimination and harassment. When she attempted to file a lawsuit against the company, Forever 21 enforced the arbitration clause of her employment contract.

Baltazar fought against the arbitration clause by arguing that it was unenforceable. She took issue with the language of the clause, which seemed to allow the employer more access to the court system. The arbitration clause allowed both parties to go to court (and skip arbitration) in order to ask for an injunction or other provisional remedy. Baltazar argued that Forever 21 was much more likely to seek an injunction in court, and based her argument on a similar case decided in 2010.

In 2010, the First Appellate District decided the case of Trivedi v. Curexo Technology Corp., 189 Cal. App. 4th 387. Trivedi held that arbitration agreements which exempted provisional remedies like injunctions were more likely to be used by employers rather than employees, and the discrepancy rendered the arbitration clause unconscionable and unenforceable.

The California Supreme Court disagreed with both Baltazar and the Trivedi court. The court held that even if Forever 21 was more likely to be able to use the court system, California Code of Civil Procedure ยง 1281. 8 allowed either party to an arbitration agreement to use the court system for provisional remedies. Since the arbitration clause did nothing but re-state established law, the California Supreme Court found that the arbitration clause was valid and enforceable. The court also rejected multiple other arguments made by Baltazar.

The Supreme Court’s decision is important because it reverses a recent trend of courts finding arbitration agreements unconscionable for technical or minor reasons. After this ruling, lower courts may be less likely to throw out an arbitration agreement, and employees may have no choice but to submit to arbitration.

If you have a conflict with your employer, and are unsure if you will have to go to arbitration, call the Law Offices of Michael L. Carver today and learn more about your options.

Mediation and Arbitration


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Our Office handles mediations and arbitrations, which are popular forms of “alternative dispute resolution”. Michael L. Carver has extensive experience in mediation and arbitration. Mr. Carver has served as a Hearing Officer for the City of Chico, California. He has been a member of the Butte County Superior Court Mediation Panel, and is a current member of the California State Bar, California Employment Lawyers Association, Butte County Bar Association, Sacramento County Bar Association and the Los Angeles County Bar Association.

Mr. Carver serves as a mediator or arbitrator. Mr. Carver also represents parties in mediations and arbitrations. His litigation experience in mediations and arbitrations includes general civil litigation, business disputes, government liability, construction, personal injury matters, discrimination, employment law and complex class actions. His experience as an attorney for businesses and individuals enables his understanding of the issues facing parties in a dispute. As a complex case and class action litigator, Mr. Carver has handled well over a hundred class action cases. Having represented both sides as an attorney in multi-million dollar cases, allows Mr. Carver to bring innovation to the negotiation process.

Mediation

Mediation is the process of bringing the parties together in an informal setting, with a neutral third party in an attempt to resolve issues between the parties. Mediation is an effective tool in resolving disputes without resort to costly and time-consuming litigation in court. The parties typically hire a mediator for a half or full day. The mediation session is typically held at the mediator’s office or at the attorney’s office for one of the parties. On the day and location of the mediation, each party will generally meet in private with the mediator, explaining their positions, and making settlement offers.

Mediation can be a less expensive and quicker way to resolve a dispute without either side spending a great deal of money litigating in court. The parties may engage in mediation prior to the filing of a lawsuit, as a means of resolving the issues without court intervention. In other situations the parties may find it necessary to litigate in court, obtain evidence to support each party’s position, analyze potential liabilities and damages of the parties, then the engage in mediation.

The Mediation Process

Arbitration

An agreement to arbitrate is usually negotiated between the parties to the dispute. In many cases an arbitration agreement is signed by the parties at the beginning of their relationship, such as when an employer hires an employee or a consumer buys a product. If the parties have signed an arbitration agreement, when a dispute arises the dispute is resolved through the arbitration process.

This means that rather than filing a lawsuit the parties will have an arbitrator decide their issue. This may be result in a binding or nonbinding ruling by the arbitrator, depending upon the agreement of the parties. The arbitrator will hear the dispute, make findings of fact and law, and issue a written ruling. The ruling is then typically enforceable in court. The arbitration process is not as formal as a court hearing, and in most cases significantly less expensive than full blown litigation

The Arbitration Process

Concerned Over Employer Arbitration Agreement?

ArbitrationMany employers want their employees to sign “arbitration agreements” requiring disputes that arise in the workplace be resolved through arbitration rather than in the courts. Arbitration is decided by a neutral third person, often a retired judge, who makes the decision as to the dispute. This means a jury will never hear your case.

This kind of agreement in the workplace have become commonplace. Employers use these agreements, because they believe the agreement will prevent disputes from going to the courts and result in more favorable treatment of employers. It is widely believed that arbitration is less expensive than courtroom litigation; however, that question is up in the air.

In the course of normal litigation, a lawsuit is filed by an employee. The employer typically pays out thousands of dollars to their attorneys to defend the court action brought by the employee. At some point the case may go to arbitration hearing unless it is settled along the way. In a California employment arbitration setting, the employer must pay most of the case costs and in many cases, the costs are more than the employer would pay in the courts.

The risk to employers is potentially greater in arbitration than in the courts. Particularly in cases involving nonpayment of overtime, the prevailing employee can recover attorneys’ fees, but the prevailing employer does not usually recover their attorneys’ fees. Worse for the employer, if they get an unfavorable decision against them by the arbitrator, the decision is usually non appealable.
There may be many reasons why employers want employees to sign arbitration agreements. The advantage for an employer in the this setting is that there is no jury, which is good because juries are unpredictable. While some studies indicate that employees win larger awards in a court trial, there is little evidence that the employers would have done better in arbitration.

There are some advantages to the employee in arbitration. Arbitrations are less formal than the court process and usually take less time than it would take to get to trial. If you’re required to sign such an agreement to obtain or keep your employment, you may want to have an attorney review the agreement and give you advice as to whether or not you should agree to the provision.

Were You Asked to Sign Something Just to Get Paid?

fiprkThe day an employee leaves their job can be a very emotional experience, even if the employee is leaving the job by choice. It is often much more so if an employee is being fired or laid off for lack of work. It makes sense, in a world where most people work paycheck to paycheck. When a job is ending, people often wonder where their next month’s rent is coming from and whether or not they’re eligible to collect unemployment.

Too often, an employer will ask an employee to sign something on this day. And employees will sign it, sometimes without even reading it, believing it is necessary to get their final paycheck. Often, they are very concerned about what their employer will say to prospective employers who call and ask about their job performance and behavior. Sometimes, employees will sign anything just because they want things to be gotten over with.

However, employees should carefully read anything they’re asked to sign regarding their employment, especially at the end of their job. The employer could be trying to get the employee to agree they have been paid everything they are owed, or even waiving their rights to sue in exchange for a small severance payment.

Labor Code 206 and 206.5 may protect employees in this situation. Labor Code Section 206.5 clearly states that an employer cannot require an employee to sign a release in order to get paid. Violation of this section can be a misdemeanor, and it covers claims regarding wages due or about to become due. Labor Code Section 206 states that in any dispute over wages, the employer shall pay the undisputed amount due within the required time limits. Triple damages can sometimes be recovered in this situation under the code. This section also provides that the employee still has the right to bring a lawsuit over disputed amounts paid, even if the employer pays the undisputed amount.

One thing an employee shouldn’t have to worry about is whether or not they’ve been paid all their wages, especially when they’re in a precarious situation to begin with.

Do You Have a Favoritism Situation, a Nepotism Case, or Discrimination?

nepOur office just received a call from an employee asking if it was legal for their boss to treat family members better than the other employees who work for them. This is a question that comes up regularly, and it is a valid question, because it involves an issue of basic fairness. Often, the caller describes a person who is related to the boss that does less work, gets more pay or gets a better schedule than the employees who are not related in these calls. The legal term here is nepotism. It means a family member is getting better treatment than the rest of the employees simply because they’re related to the boss or owner of the business. The truth is that unless you’re working for the government, and are covered under a Government Code Section, there are no specific laws preventing an employer from treating an employee better than the rest because they are related.
However, an employer could be breaking their own anti-nepotism policy. Such policies can often be found in an employee handbook. At times, union contracts forbid such treatment and require that things like preferred schedules or jobs be based upon seniority, or another neutral criteria. Sometimes, a breach of contract or breach of implied contract case can be the result of such a situation.
But, just because you don’t work for the government, have a contract or an anti-nepotism policy — that doesn’t mean you don’t have a case. Situations that look like nepotism can actually turn out to be a possible discrimination case. If you are being treated differently because of your gender, age, race, nationality or sexual orientation, you may have a violation of the law taking place. Such cases are generally fact specific and will require an interview with an experienced law office to determine what is happening.

Unfair Business Practices


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This office handles actions brought under the California Law (section 17200) Unfair Practices Act. Section 17200 is also sometimes referred to as the California “Unfair Competition law.”
Section 17200 includes five definitions of unfair competition: an unlawful business act or practice, an unfair business act or practice, a fraudulent business act or practice, unfair, deceptive, untrue or misleading advertising, or any act prohibited by Sections 17500. A “unfair” business practice defines practices that have the tendency to deceive the public. An “unlawful” practice is anything that violates any statute, regulation, or rule. Actual fraud requires a misrepresentation of fact, actual and reasonable reliance, and resulting damages. Under Section 17200, the only requirement is to demonstrate that the public is likely to be deceived.
This law was enacted to safeguard the public against the creation or perpetuation of business monopolies and to foster and encourage competition, by prohibiting unfair, dishonest, deceptive, destructive, fraudulent, and discriminatory practices by which fair and honest competition is destroyed or prevented.

Unfair Business Practices

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An unfair business practice is one that has the tendency to deceive the public or its employees. Unfair Business Practice encompasses wrongfully withheld wages, fraud, unfair competition, misrepresentation, price discrimination and false advertising.
Unfair Business actions may be brought by any aggrieved person acting for the interest of the persons. For example, in the court case of Cortez v. Purolator Air Filtration Products Company, an employee sued their employer under the California Labor Code and the Unfair Practices Act and obtain wrongfully withheld wages due all employees. One of the major advantages for the consumer in such an action, is that the Statute of Limitations may allow suits for events which occurred up to four years prior to the suit.

Contact our office to find out how the law may apply to you.

For a free consultation call 1-855-700-5678

Victims Rights

Fraud

Our office represents victims of negligent or intentional "Torts."

A tort is a wrong resulting from a breach of a legal duty, that exists by virtue of society's expectations regarding interpersonal conduct. Examples of negligent torts are auto accidents, slips and falls, or other conduct where a person is injured or property damaged by accident. Some Intentional Torts may also be crimes, such as assault/battery, fraud, false imprisonment, etc. A number of intentional torts within our practice areas are listed below with a brief explanation.

  • Fraud.: If someone knowingly lied to or concealed something important from you, and it caused you damages, you may have been a victim of fraud. This can be as simple as a product that doesn’t perform as advertised or as complicated as Identity Theft. Fraud is the making or suggestion of a fact which is not true, by one who does not believe it to be true. Fraud may also occur when a person makes a positive assertion of facts which are false or misleading, when the person has no reasonable basis to believe the facts are true. It may be a promise made without any intention of performing the promise or any other act intended to deceive. Acts of fraud may occur within a contractual sense, or by inducing a person to rely on representations for the purpose of obtaining money or other goods by false pretenses.
  • Assault/Battery: Defined as any threat or use of force on another that causes that person to reasonably believe they’re about to be battered. An actual battery involves a use of force resulting in the harmful contact with another. A battery is a violation of a person’s interest in freedom from intentional, unlawful, harmful or offensive, unconsented contact with his or her body. Battery may also occur where a person consents to one form of touching, but another occurs, such as in the case of a doctor performing a procedure to which the patient has not consented.
  • Sexual Misconduct.: Sexual harassment is a civil matter, usually involving a workplace situation where unwanted advances won’t stop even after someone has spoken up about it. But what some people don’t realize is that their status as a crime victim can result in a civil case. If you have been abused sexually in a childhood or adult relationship, you may be owed compensation for the damages involved. Our office represents victims of sexual assault, childhood abuse and sexual harassment. There are many statutes that provide rights to such victims, but which are rarely used. If you have been a victim of such conduct, we might be about to help recover damages to compensate you for what you have endured.
  • Defamation.: A false statement that harms your reputation could be defamation. For instance, if you own a restaurant and someone goes on a restaurant review site and maliciously claims that your restaurant served tainted food, and people avoid the restaurant as a result, this could result in a claim of defamation. The important issue here is that it involves untrue facts – a matter of opinion, for example, that your restaurant’s food wasn’t tasty, is protected.
  • Invasion of Privacy.: In a world where people put what they had for lunch on the internet for everyone to see, it’s hard to image an action for invasion of privacy exists. But if someone has intentionally interfered with your privacy, you could have a cause of action. Essentially, this involves

    • A use of your name or likeness without permission
    • Something that portrays you in a false light (even if it’s not necessarily a negative light.)
    • Public disclosure of facts a reasonable person would want kept private.

    Privacy is a fundamental constitutional right. A person has a right to be free from the wrongful scrutinizing or publicizing of their private affairs, which are outside of legitimate public concerns. Generally, public figures, politicians, or high-profile persons have less expectation of privacy than other persons. Invasion of Privacy may also occur by an intrusion into a person’s privacy or solitude by another, publicly placing a person in a false light, or the use or appropriation of the person’s name, picture or likeness. An Invasion of Privacy may also occur when an employer discloses results of a medical exam, drug test or other private information.

If you have a question about victims rights or torts,

Please call us for a free consultation at 1-855-700-5678