Employment Law Seminar on Employee Handbooks

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Employment Law Seminar on Employee Handbooks
Arbitration Agreements

• Elizabeth J. KoumasBarker Law Group, APLC

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How Vulnerable Would Your Organization Be If

• A set of guidelines or procedures fail to explain
  what steps to take to make a harassment complaint
  or in a harassment investigation?
• A supervisor makes an unintended promise which is
  creatively argued in court to be a binding
  employer obligation?

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Pros and Cons of Employee Handbooks

• Flexibility in Administering Policies
• Promote Fairness and Evenhanded Treatment
• Strengthen Recruitment Efforts
• Communicate Benefits
• Enunciate Standards of Performance
• Avoid or Defend Discrimination Wrongful
  Discharge Claims
• Reinforce Employee Confidence in
  Fairness/Integrity of Company Policies

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Pros and Cons of Employee Handbooks

• Assist Employer with Compliance with Obligations
  Under Expanding Labor Laws
• Avoid Confusion Regarding Nature and Eligibility
  for Benefits

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Formats

• Clarity, Readability, Understandability
• Bound versus unbound version
• Style and Tone
• Consistency
• Gender Third Party References
• Handbooks versus Policies and Procedures Manual
• Emphasize Positive Aspects
• Translations

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Essential Policies

• At-Will Employment
• Equal Opportunity Employer
• Anti-Harassment
• Leaves of Absence
• Attendance
• Discipline
• Safety Policies
• Workplace Security Violence Prevention

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Essential Policies

• Policies Implicating Privacy Rights
• Internet, E-Mail and Electronic Communications
• Payroll Practices
• Benefit Description
• Employee Classifications
• Grievance Procedure
• Separation Policies
• Acknowledgements

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Applicable Laws

• Wage and Hour
• FMLA / CFRA
• Workers Compensation
• FEHA
• EEOC
• NLRA
• Wrongful Termination
• Right to Pay
• ERISA

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Does your Handbook Need to Be Audited?

• Breach of Contract Claims
• Employee Guesswork
• Employee Ignorance
• Litigate FMLA Issues
• Surprise Benefits
• Internet Surfing
• Random Disciplinary Practices
• Harassment Claims
• Ignore Substance Abuse
• Discrimination Claims

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Mandatory Arbitration Agreements?
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To Have or Not to Have, That is the Question

• Generally, courts will enforce arbitration
  agreements if they are fair and give the employee
  the possibility of obtaining the full legal
  remedies available
• Such agreements will be enforced unless they are
  procedurally and substantively unconscionable.

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FAA Federal Arbitration Act

• The Federal Arbitration Act encourages
  arbitration and preempts state laws which are
  inconsistent

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SUBSTANTIVE UNCONSCIONABILITY

• Terms that are so one-sided as to shock the
  conscience

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PROCEDURAL UNCONSCIONABILITY

• An inequality of bargaining power that results in
  no real negotiation and an absence of meaningful
  choice.

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Pros and Cons of Agreements

• No Jury Trial
• Costs
• Time
• No Win Fall Awards
• Reduced Caseload
• Confidentiality

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Armendariz Criteria for Enforceability

• No take it or leave it agreements
• Arbitrator will issue a written opinion
• Agreement does not limit the remedies available
• Cannot require employee to pay expense unique to
  arbitration
• Neutral Arbitrator
• Mutual
• Allow for Adequate Discovery

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Ninth Circuit Federal View

• Duffield Case (1998)
• Title VII FEHA claims cant be compelled
  because the Civil Rights Act does not allow
  Arbitration Agreements in Employment Contract.

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Luce Forward Decision (2003)

• Ninth Circuit acknowledged deciding Duffield
  wrong!
• if Congress intended to preclude Title VII claims
  from being enforced by Arbitration Agreement, it
  knew how to do so.

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Essential Provisions

• Severability Clause
• Claims Covered
• Notice Requirements
• Costs
• Arbitration Procedures
• Jury Waivers
• Venue
• Voluntary

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Applicants Versus Current Employees
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Elizabeth J. Koumas, Esq.Barker Law Group,
APLC(619) 682-4040 / ejk_at_barkerlawgroup.com