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 Process

Med_Mediation is an informal process where the parties meet in a confidential settling with a neutral third party, the “mediator”, and try to resolve the dispute. Unlike a court proceeding, mediations are generally held behind closed doors. The mediator listens to the issues presented by the parties, and then proposes ideas that may resolve the conflict.


Selecting a Mediators

Mediators are generally selected by the parties based upon their experience. While mediators are “neutral”, their experience with many different types of cases increases their credibility to the parties. In many cases, the opinions of an experienced mediator may assist the parties in evaluating their positions.

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Preparation for Mediation

Once the mediation session has been scheduled, the parties will prepare for the mediation session. If the mediation involves a pending court action, the parties will generally engage sufficient discovery (collecting evidence and documents) to make knowledgeable decisions at the mediation. Each party will then prepare a Mediation Brief which is provided to the mediator in advance of the mediation. This allows the mediator to get an overview of the claims, the legal issues raised, the parties evaluation of damages and other settlement issues.

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Mediation Day

The mediation session usually begins with a short joint session where the parties discuss the parameters of the negotiations. The mediation is confidential and the fact that something was said by a party in mediation can be held against the parties if the case does not settle. The parties and their attorneys will execute a confidentiality agreement. The parties are placed in separate rooms. The mediator typically moves between the parties rooms and meets privately discussing the case. The parties will discuss their evidence and arguments with the mediator, as the mediator methodically negotiates the settlement value of the case or other resolution. If an agreement is reached, one of the parties or the mediator will typically draft a brief Memorandum of Understanding which will then serve as the outline for more formal settlement documents.

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Advantages of Mediation

By participating in mediation, the parties are in position for an early resolution of the case. By settling the case, parties have control over the outcome. Without a pretrial settlement, the parties are faced with having a judge or jury decide the fate of their case. In other words, one side loses and one side wins. By proceeding to trial, both sides may lose in terms of lost time, attorney’s fees and litigations costs. From the plaintiff’s perspective, the longer a case drags on, the more anxious the plaintiff may become. Without resolution, a plaintiff will go through necessary depositions and an extended period of stress over the eventual outcome. For many defendants, particularly if they are companies, litigation is seen as a drain on the financial resources of the company. By resolving the case early, each party can put the matter to rest.


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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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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.

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.

Class Action Settles for $2 Million for Consumers

FTCLumosity customers could be in for a $2 million windfall due to a settlement of a case against the San Francisco based company. A federal consumer protection agency accused the company of lacking the proof to back up claims about improving mental sharpness through the use of their project.

The developer of “brain training” games has settled federal allegations of misleading customers by agreeing to pay $2 million. Lumosity games, accessed through online applications and programs for which customers generally paid a subscription fee, were advertising as providing a list of cognitive benefits. But the company’s advertisements suggested that playing them a few times a week could boost productivity at work and school, and possibly delay dementia, according to the Federal Trade Commission’s allegations.

The federal agency regulates advertising to consumers, and has recently taken on products including dietary supplements which claim to make people more mentally sharp. The FTC representative said that the advertising Lumosity used preyed on people’s fears of getting older and not being able to think as well, and that the company lacked the science to back up their claims. People’s fear of memory loss, dementia and Alzheimer’s disease led them to buy the product, but there was no proof any of these problems could be helped by the products in question.

Consumers of the company’s product purchased either a monthly subscription or access for a lifetime. As a part of the class action settlement, Lumos Labs must offer customers an easy way to cancel subscriptions. A judgment in the amount of $50 million was originally obtained by the agency, but the company reportedly was unable to pay that amount.

Trade publications indicate the company is one of many in the “brain training” business – worth an estimated $1 billion in sales per year. However, the Lumosity company was one of the most highly visible in the exploding field, no doubt an area of growth due at least in part to the aging population in America and other similarly developed countries around the world.

Federal law states that the only products that can claim to treat or prevent a serious disease must be reviewed and approved by the food and drug administration for their effectiveness. However, the agency has yet to approve a single “brain training” program.

Consumer class action involve claims such as these – where a customer acts on behalf of a group of people who feel they have been wronged or defrauded by a product or service. Sometimes, this is the only way that some issues can be addressed, due to the simple fact that the claims involved can be far too small to justify the high cost of bringing an individual lawsuit. The consumers, if handled individually, could not hope to sensibly pursue the matter. In some cases, the customers involved spent an amount too small to be worth filing a small claims case. Class action cases are an efficient way to address such issues.

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.