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.

Association wins Victory on Dues Issue

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The California Teacher’s Association won a large victory for unions and organized labor in the United States Supreme Court on May 26, 2016. The justices deadlocked 4-4, which means that lower court’s ruling in the matter stands.

The case involved ten teachers from California and the Christian Educators Association International who jointly sued the California Teacher’s Association (CTA). The CTA is one of the largest and most powerful teachers’ unions in the country.

California is one of 23 states which requires public employees like teachers to pay a mandatory fee to the union even if the employee is not a union member. The state and unions reason that since all teachers benefit from the association’s collective bargaining efforts, then all teachers should pay for these costs.

The teachers argued that this “agency shop” law, which requires teachers to pay union fees as a condition of employment, is unconstitutional. The teachers believe that the rule violates their freedom of speech and freedom of association. Some teachers do not want to join the union because they disagree with unions in general, and others disagree with the CTA’s widespread political activities. Others simply do not believe they should be forced to pay money for an organization that they do not want to join.

The tied decision was expected after the death of Justice Antonin Scalia. Since the Court only has eight justices, a tie leaves the lower court decision in place but does not decide the issue permanently. The case can still be re-presented to the Supreme Court once a ninth justice is in place.

Many legal observers believed that Justice Scalia would have ruled against the unions. If this were the case, the decision would have caused a major blow to unions across the nation and would have greatly decreased their power. If the decision were overturned, non-union employees would no longer have to contribute to the union’s collective bargaining costs, and the impact would be substantial.

Anti-union activists have vowed to present the case again, and many believe that the issue is important enough that a full panel of justices will agree to re-hear the case. Unless or until that happens, California law still allows unions to charge non-members dues or fees in order to support their activities.

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

Arbitration Process

What is Arbitration?

arb_mIn contractual arbitration, the parties agree to have their dispute decided by a neutral third party, known as an “arbitrator”. The arbitrator will act as a judge and jury. After giving the parties the opportunity to present their case, present witnesses and any relevant documents or other evidence, the arbitrator will decide who wins and losses.




The Arbitration Agreement

The arbitration process starts with the parties signing an agreement to arbitrate. This agreement may occur well before any disputes develop, such as at the initiation of the relationship between the parties. Good examples are employment arbitration agreements used by employers upon hiring an employee. In other instances, the parties to an ongoing dispute may decide to have their matter resolved by an arbitrator rather than continuing on with a lawsuit. In some cases, courts will order the parties to go to judicial arbitration.
The Arbitration Agreement will usually describe the initiation process, arbitrator selection process, the arbitration rules and other details.

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The Arbitration Process

Generally a party initiates the arbitration process by making a “demand for arbitration”. The timing of the demand is usually a term in the arbitration agreement. Upon demand, the parties usually have a limited amount of time to select an arbitrator. The arbitration agreement may specify a particular arbitration service such as American arbitration Association (AAA) and the rules to be followed. Depending upon the arbitration provider, the arbitration fees can run several hundred dollars or more per hour. In California, an employment arbitration agreement cannot require an employee to pay the costs of arbitration, beyond with the employee would normally pay to file a lawsuit.

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Choosing the Arbitrator

The parties are generally free to select from a list of available arbitrators. Frequently, the parties will pick out a list of arbitrators who are acceptable, then alternately strike names from the list until one person remains. That person will become the arbitrator. Once an arbitrator has been selected and an agreement signed for payment of fees to the arbitrator or arbitration provider, the arbitrator will generally hold a conference with all parties and discuss the manner in which the arbitration will proceed.

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Discovery

California arbitration agreements typically provide for discovery. Discovery is the process by which the parties obtain evidence to prove their case or prove their defenses. Discovery can take the form of written questions, requests for documents, requests for admissions, deposition testimony and other evidence. In some cases the arbitrator may limit the amount of discovery. Part of the purpose of arbitration is to reduce the cost of litigation. Generally, the discovery plan will be approved or modified by the arbitrator.

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The Hearing

The arbitrator will decide, in consultation with the parties, the date and time of the arbitration hearing. At the hearing, the parties, through their attorneys if they have them, will typically provide a written brief to the arbitrator setting forth a summary of the facts and legal arguments. The parties, through their attorneys, will then make opening statements after which the plaintiff or claimant (the person bringing the action) will proceed by putting on their evidence. Depending upon the arbitrator, testimony may typically be in live form or may be by declaration.

After the plaintiff presents their case, the defendant will present their case. Thereafter, some arbitrators will allow the plaintiff to present a brief response to the defense evidence, sometimes followed by the defendant presenting their response to Plaintiff’s evidence. The parties usually have the opportunity to cross exam witnesses. The Arbitrator usually has the power to issue subpoenas to compel witnesses appearances.

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The Ruling

The arbitrator will consider the evidence and make a written ruling. Arbitration rulings are generally binding unless the parties have agreed to a nonbinding arbitration. The arbitration award in a binding arbitration is generally not appealable.

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Civil Enforcement of the Ruling

Following the issuing of a ruling by the arbitrator, either party may petition the court to confirm the award.


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If you have questions regarding the arbitration process
please call the Law Offices of Michael L. Carver at 855-700-5678

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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.

Employment Law

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The Attorneys of the Law Office of Michael L. Carver handle a wide range of employment law issues. Our practice focuses litigation and has extensive experience in law matters, including discrimination, retaliation, wrongful termination, whistleblower, overtime claims, meal and rest break claims, and other violations of the California Labor Code.

We have successfully resolved over a thousand matters for our clients and have earned the respect of courts and other attorneys throughout California. We have record of success in negotiations and class action litigation.

Employment Law Focus

Due to the large amount of Labor and Employment Law issues we handle, we have created a separate site for that section of our pratice. Please visit us at the Labor Law Office for more information about Labor and Employment Law issues.

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

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.

Civil Rights Violated By Keeping Suspect In Custody for Three Days?

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The story of a young man in Chicago who was arrested on his 20th birthday raises the question of how much one has to go through to have a case for civil rights violations. In this case, police officers left a man zip-tied to a bench on a hot summer day, and denied him access to an attorney. It took him four months to be found not guilty of the alleged crime of selling a controlled substance, after a witness picked someone else as the person who had committed the crime.

The case was outside the scope of an ongoing U.S. Department of Justice investigation in to possible human rights violation considered against the Chicago Police Department. A Cook County commissioner was reportedly planning to bring the issue before a Board of Commissioners, asking that the situation be included in the investigation. Although the young man later found not guilty, he was arrested in 2005 getting his hair braided on a relative’s porch. The civil rights violations began when he was taken to a detention facility, formerly a large retail warehouse, where the air was unreasonably hot, and interrogated for hours about drug crimes and a murder he knew nothing about. He wasn’t allowed access to a lawyer or phone for three days.

Why he wasn’t taken to a police station in the area isn’t clear. He was reportedly identified as a man who sold about $20 worth of drugs to an undercover police officer. But at his trial, the officer pointed to someone else, when asked who had allegedly sold her the drugs. A Chicago attorney says he represents three African American men who say they were unlawfully arrested, handcuffed to a wall in a dark cell, strip-searched and denied access to food and counsel for crimes they didn’t commit – constituting violations of their basic human rights in a practice that has gone on for years, according to a CNN report.

The accusations include the use of the “n word” and that the police made up evidence to make it look like his clients were guilty. Lawyers realized the depth of the issue when they got calls not from police stations, but from relatives, because those in jail weren’t being allowed to use the phone promptly upon their arrest. It also meant most of those arrested in Chicago had no access to lawyers while in police custody.

Less than 1% of those arrested in Chicago in 2013 had a lawyer while in police custody. A University of California Irvine Law Review study recently included that detail and furthermore found that in Chicago “arrestees can be detained without a lawyer for a maximum of three days.” Illinois law only stipulates a person is entitled to communicate with an attorney “within a reasonable time” after an arrest.

The alleged victim in this case says the arrest still injures his ability to get employment.

Civil Rights


Civil Rights

The term “Civil Rights” generally refers to those rights established under state and federal constitutions or statutes protecting certain “unalienable rights”, such as voting or being free from unlawful searches or seizures and discrimination based upon gender, race, disability, age or other characteristics. This office handles a wide variety of civil rights cases under the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act, the California Fair Employment and Housing Act, the Unruh Civil Rights Act, and actions commonly referred to as “Section 1983” actions.

Your Civil Rights:

Civil Rights Act of 1964 (Title VII), 42 US Code Section 2000e-2 is a federal law which prohibits discrimination in employment on the basis of an individual’s race, color, religion, sex or national origin.

Age Discrimination in Employment Act (ADEA) is a federal law which protects certain employees against age discrimination in employment.

California Fair Employment and Housing Act (FEHA), California Government Code Section 12940, et seq., is similar to Title VII and protects individuals under California law. The protections are similar to those of the Americans with Disabilities Act (ADA), but is much broader
in its protection of employees with medical conditions. The FEHA also protects employees against discrimination based upon gender, race, religion, medical condition and other characteristics.

Unruh Civil Rights Act, California Civil Code Section 51, et seq., prohibits discrimination by California “business establishments” on the basis of protected characteristics such as race, gender and disability.

Title 42 US Code Section 1983 is a federal law which provides protection of individuals denied rights under “color of state law.” These actions are typically based upon denial of due process or equal protection, such as police brutality, or termination of government employees’ jobs.

If you believe you have had your civil rights violated, contact our office for a consultation.

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

ARTICLES

Recent Developments:

 

The Scales of Justice, Old Bailey, London, Britain - May 2007Labor and Employment laws change frequently, either by changes in statutes, enactments of new statutes or interpretations by the Courts. For this reason, a personal consultation must be scheduled to adequately apprise our clients of important laws and cases which affect them. This page will briefly describe some of the recent developments in Labor and Employment Law.

 

Recent Discrimination Developments

Recent Employment Relations Developments

Recent Wage and Hour Developments