In the case of Mendez v. Mid-Wilshire Health Care Center, (Filed 9/23/2013; 2013 WL 870983, Zelon, J.), California’s Court of Appeal for the Second District delineated what language must be contained in collective bargaining agreements in order to compel an employee to engage in the arbitration of statutory-based discrimination claims.
Mendez was a union member and nurse’s assistant employed by Mid-Wilshire Health Care Center (“Mid–Wilshire”). In February 2009, Mendez experienced vaginal bleeding which necessitated a short leave of absence from work. Around Mendez’s scheduled return date, Mid-Wilshire terminated Mendez’s employment via her union representative.
In November 2010, Mendez filed suit against Mid–Wilshire, alleging, among other things, violations of the California Fair Employment and Housing Act (“FEHA”), Cal.Gov.Code §12940, et seq. Mid–Wilshire filed a motion to compel arbitration and stay the action, citing the grievance and arbitration procedure contained the collective bargaining agreement (“CBA”) between Mid–Wilshire and the union.
The CBA provided: “That in the event the grievance remains unresolved, the grieving party may appeal the grievance to arbitration.” The CBA did not cite to particular statutes, but instead contained general mandates to comply with “all City, County, State and Federal regulations relative to discrimination,” and “to abide by applicable Federal and State laws and regulations and local ordinances.”
Generally, there is a presumption that disputes arising out of collective bargaining agreements are arbitrable. However, the landmark case Wright v. Universal Mar. Serv. Corp., 525 U.S. 70 (1998) held that such presumption does not apply to statutory violations. Wright set forth the standard that a collective bargaining agreement provision which purports to require the arbitration of statutory claims must be “particularly clear,” and a waiver of the right to have a court hear such a claim must be “clear and unmistakable.”
Based on Wright, the trial court denied Mid–Wilshire’s motion to compel. Mid–Wilshire appealed on the issue of whether the arbitration agreement reached Mendez’s FEHA claims. The appellate court held that because the collective bargaining agreement did not clearly and unmistakably refer Mendez’s statutory discrimination claims to arbitration, the trial court properly denied Mid–Wilshire’s motion to compel arbitration of those claims.
The court explained, “at a minimum, the agreement must specify the statutes for which claims of violation will be subject to arbitration.” It noted that a broad, nonspecific arbitration clause could include statutory discrimination claims if there is explicit reference to the antidiscrimination statute elsewhere. However, the CBA at issue failed to meet the clear and unmistakable standard because it contained “a broad arbitration clause coupled with general language about complying with the law.”
Employers engaged in the collective bargaining process with a union should be conscientious in drafting an arbitration clause. Wright and its progeny teach us the best drafting practice is to couple an explicit reference to discrimination statutes in a non-discrimination clause with a narrow arbitration provision which clearly includes a waiver of the employee’s right to have a court hear those statutory discrimination claims.
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