California Court of Appeal Concludes That a Collective Bargaining Agreement Can Waive an Employee’s Right to Bring Statutory Claims in a Judicial Forum
As courts continue to address whether and when employers can compel employees to arbitrate their wage-hour claims, the California Court of Appeal has issued a decision in Cortez v. Doty Bros. Equipment Company, No. B275255, ___ Cal. App. 5th ___ (2017), that should be of great help to many California employers with collective bargaining agreements (“CBAs”) that include arbitration provisions.
The United States Supreme Court and multiple California courts have held that a CBA may require arbitration of an employee’s statutory claims only if the CBA includes a “clear and unmistakable” waiver of the right to bring those statutory claims in a judicial forum. What constitutes a “clear and unmistakable” waiver has been a fact-based issue resolved on a case-by-case basis, often in favor of allowing employees to avoid arbitration of their wage-hour claims.
The Cortez Court reached a different, employer-friendly conclusion.
The CBA at issue in Cortez provided that “[a]ny dispute or grievance arising from … Wage Order 16 shall be processed under and in accordance with” the arbitration procedure outlined in the CBA. The plaintiff brought claims under not only Wage Order 16, but also under the California Labor Code. For this reason, the plaintiff argued that the CBA did not apply to his Labor Code claims. But there was no dispute that the agreement to arbitrate claims “arising under” Wage Order 16 was clear and unmistakable. For this reason, the Court concluded, it could not “disregard the reality that an employee may enforce the protections of the wage order in court only by bringing a claim under the Labor Code,” and that “[t]o hold that wage and hour disputes arising under Wage Order 16 are arbitrable under the CBA only in theory, but not in practice because they are, by necessity, brought under the Labor Code, would result in the very absurdity courts are required to avoid.” As a result, the Court concluded that those Labor Code claims that arise under Wage Order 16 must be arbitrated.
However, the Cortez Court did not compel arbitration of those Labor Code claims that did not arise under Wage Order 16 – in this case, claims that concerned the timely payment of all wages due upon termination – because there is no reference to such a requirement in Wage Order 16. The Cortez Court concluded that the plaintiff’s claim for failure to pay all wages due upon termination “is based on a statute that is not informed by, referenced in, or even relevant to, the wage order disputes they clearly and unmistakably agreed to arbitrate.”
The plaintiff may well seek California Supreme Court review of Cortez. Whether that happens or not, employers in California negotiating CBAs will want to keep the “clear and unmistakable” standard in mind if they want arbitration to be the sole and exclusive forum for employees to resolve any statutory claims they may have.