The first question to be answered is whether the arbitration clause does not cover strong public rights (usually legal rights such as minimum wage, overtime and rights to discrimination) or private rights (such as confidentiality agreements and ownership of labour products created during employment). Both types of claims require that an arbitration clause not be ruthless (see below). In addition, the arbitration clause for non-enforceable public law rights must have four additional elements to be considered enforceable. The arbitration agreement at issue contained only two unscrupulous provisions. Nevertheless, the court found that “more than one unlawful provision” was weighed against arbitration agreement against severance pay. (Id. to 124.) In particular, the Tribunal held that “several shortcomings indicate a systematic effort to impose arbitration on a worker not only as an alternative to litigation, but as a low-quality forum that operates for the benefit of the employer.” (Ibid.) Therefore, the presence of two or more ruthless provisions in your client`s arbitration agreement shows the employer`s efforts to impose arbitration as a low-quality forum and weighs more on cancellation than on severance pay. On the contrary, the court should. to reform the contract, not by severance pay or restriction, but by supplementing it with additional conditions. Section 1670.5 of the Civil Code does not allow such a reform… Since a court is not in a position to cure this faculty of scruples by compensation or limitation and not by reform and increase, it must repeal the entire treaty. [Quote.] Ask your client if their employer has ever provided a copy of the arbitration rules.
Also check the language of the agreement – does it provide your customer with a postal address or website where they can get a copy of these built-in rules? However, the mere provision of a site cannot suffice. Does a visit to the site clearly indicate which regulatory framework should apply or does the website offer several rules? In the latter case, does the arbitral provision determine which of these multiple rules will apply? Therefore, the most effective opposition to an employer`s request to impose arbitration is to prove that the claimant never agreed to commence arbitration. “If an employee doesn`t know the contractual clauses, there is no meeting between minds, no reciprocity, no fundamental fairness.” (Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696.) In dismissing a request for arbitration in Metters, the Court of Appeal strongly expressed its disapproval of any deliberate cover-up in the drafting of so-called arbitration agreements. (Id. at 702.) The Federal Arbitration Act (FAA), passed in 1925, was intended to reduce costs and delays in court proceedings. For more than 50 years, the FAA applied only to federal courts. Starting with Southland Corp.
v. Keating (1984) 465 U.S. 1 [FAA anticipates state law and applies in state cases] and metastasized rapidly over the next 20 years, Supreme Court law greatly expanded the concept of arbitration. These extensions are often neither faster nor less expensive than litigation and are often geared towards large employers with repeat players, especially those with relationships between repeat referees. (See z.B. Circuit City Stores, Inc. . .