Even Though Employers Have A Significant Advantage Over Employees in Selecting A Forum – Such as Arbitration – Employer who Hides the Ball Unfairly Takes Advantage of Its Position

Alright – enough already! The courts really give employers every unfair opportunity to require their employees to “agree” to arbitrate their disputes. But even the courts agree that employers can’t be allowed to hide what they are doing! Take Empire Today LLC (also known as Flooring Install). Their management should be ashamed of themselves.

Empire employs lots of carpet installers, and lots of them are not well educated (at least in terms of reading 11 pages of single-spaced legalese) and for many, the English in which their employment agreements are written is not their first language.

So you probably get the drift here. Empire tells its non-English speaking employees that they must sign an 11 page, single-spaced, complicated and obtuse legalese document, in order to get the job. And, they must sign pretty much all of their rights away, and it was made clear to them that there was no room for other options or changes to the contract. Oh – and this arbitration provision was buried in paragraph 36!

Mr. Samaniego signed. Later, when he determined he wasn’t being paid fairly, he sued on behalf of himself and others similarly situated (i.e. he filed a class action). Samaniego v. Empire Today LLC, ___Cal.App.4th____ (April 5, 2012).

Empire claimed Mr. Samaniego had agreed to arbitrate any claims he had against Empire. The Court of Appeals disagreed, and there is little wonder why. Empire’s agreement was a mastery of hide the ball:

1. The arbitration agreement was in the 36th paragraph;

2. The agreement to arbitrate didn’t say what the terms of the agreement were – just referred to the commercial rules of the American Arbitration Association, but did not attach them;

3. The agreement was a mind-numbing 11 page single-spaced document;

4. The agreement was incomprehensible to the average installer, and perhaps the average lawyer, chocked full of legalese. Even if an installer wanted to read it, Mr. Samaniego’s first language wasn’t English and he was far from fluent in English, and;

5. The agreement was one sided, because declaratory and injunctive claims (i.e. claims an employer might bring) could be brought in court rather than arbitration.

Arbitration agreements signed before a dispute arises – i.e. with hiring or routinely in the course of employment – just aren’t fair. Employees are taken unfair advantage of. They need a job, so they’ll sign anything, especially an incomprehensible 11 page agreement. They aren’t going to hire a lawyer to read this arbitration agreement, just like they won’t hire an accountant to read their W-4 or tax documents. They will sign what they must in order to go to work and collect a paycheck. The court made the right decision by finding this arbitration agreement unfair and unenforceable. The government should put an end to these oppressive agreements!

Jody I. LeWitter
June 20, 2012

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