On November 7, 2013, the California Court of Appeal held in Volpei v. County of Ventura, Case No. B243954, that enforcement of an arbitration provision requires clear and unmistakable waiver of the employee’s right to a judicial forum, even where the provision provides for mandatory, binding arbitration.
Plaintiff Volpei filed a complaint against the County for retaliation, harassment, disability discrimination, and other claims pursuant to the California Fair Employment and Housing Act. The County subsequently filed a petition to compel arbitration of Volpei’s claims, citing a provision of the memorandum of agreement (“MOA”) between the County and Volpei’s bargaining representative, the Ventura County Deputy Sheriff’s Association (the “Association”). Under the MOA, the grievance procedure was initiated by an informal complaint and then entailed a three-step formal complaint process. The MOA further provided that any grievance that remains unresolved may be submitted to arbitration by the Association. The trial court denied the petition to compel arbitration on the grounds that the arbitration provision was unilateral and permissive and did not clearly and unmistakably waive Volpei’s right to a judicial forum for his statutory discrimination claims.
Relying primarily on 14 Penn Plaza LLC v. Pyett (2009) 556 U.S. 247, 274, the Court of Appeal agreed. In 14 Penn Plaza, a union clearly and unmistakably waived employee rights to a judicial forum for federal statutory age discrimination claims by stating: “claims made pursuant to Title VII of the Civil Rights Act [and] the Americans with Disabilities Act … shall be subject to the grievance and arbitration procedure … as the sole and exclusive remedy for violations.” By contrast, the MOA in Volpei provided that unresolved grievances “may be submitted to arbitration by the Association.” The Court concluded that the word “may” did not create a clear and unmistakable waiver, rendering the provision permissive, or at least susceptible of a permissive meaning, particularly where “shall” was used elsewhere in the same provision.
The practical effect of Volpei is that arbitration provisions, particularly with respect to statutory claims, must specifically identify the type of claims that will be subject to arbitration, and must unambiguously and unequivocally remove the employee’s right to a judicial forum.
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