Employers can impose an arbitration agreement on employees without their consent.

DIAZ v. SOHNEN ENTERPRISES, et al., Court of Appeals of California, Second District, Division Seven.

Filed April 10, 2019. (2019 DJDAR 3032

Sohnen Enterprises appeals from the denial of its motion to compel arbitration of claims brought by its employee, Erika Diaz (“Diaz”). Diaz, an employee of Sohnen Enterprises, filed a complaint alleging workplace discrimination on December 22, 2016. Twenty days earlier, on December 2, 2016, she and her co-workers received notice at an in-person meeting that the company was adopting a new dispute resolution policy requiring arbitration of all claims. At that meeting, the COO of Sohnen informed all employees present, including Diaz, about the new dispute resolution agreement. She included in her explanation that continued employment by an employee who refuses to sign the agreement would itself constitute acceptance of the dispute resolution agreement. According to the COO, the explanation was provided in both English and in Spanish. All employees received a copy of the agreement to review at home.

On December 19, 2016, representatives of the company met privately with Diaz, who had indicated on December 14 that she did not wish to sign the agreement. Diaz was again advised, in Spanish and English, that continuing to work constituted acceptance of the agreement. On December 23, 2016, Diaz and her lawyer presented to Sohnen a letter dated December 20, 2016 rejecting the agreement but indicating that Diaz intended to continue her employment. On the same date, Diaz also served the complaint on Sohnen, who then sent a demand for arbitration to Diaz’s counsel, based on the fact of Diaz’s continued employment at the company. Counsel for Diaz did not reply. Sohnen filed its motion to compel arbitration in April. Diaz filed opposition in May. The trial court heard argument, and denied the motion, holding that the agreement was a contract of adhesion, e.g., a “take it or leave it contract.” The trial court conducted no factual findings to address whether the arbitration agreement was a either procedurally or substantively unconscionable.   Under the facts of this case, is the arbitration agreement a contract of adhesion? The Court reversed, hold that continued employment demonstrated implied acceptance of change in job security rules.

It has been settled law now for some time that when an employee continues her employment after notification that an agreement to arbitration is a condition of continued employment, that employee impliedly consents to the arbitration agreement, see, Pinnacle Museum Tower Assn. v. Pinnacle Market Development(US), LLC (2012) 55 Cal.4th 223, 236; Harris v. TAP Worldwide, LLC (2016) 248Cal.App.4th 373, 383; Craig v. Brown & Root, Inc.(2000) 84 Cal.App.4th 416, 420.

Plaintiff relied on two cases where the employees were given employer/employee handbooks and told that they needed to sign the agreement contained in the handbook or the handbook and if they did not sign the agreement, it would not be effective until they did so! That was not the case here. Diaz was told twice, in both Spanish and English, that her employment was now contingent upon her agreeing to arbitrate.

Filed Under: Class Action (Employment), Labor & Employment