May an employer force an employee covered by a collective bargaining agreement (“CBA”) to arbitrate their wage and hour claims instead of suing in court? Maybe, answered one California Court of Appeal in Vasserman v. Henry Mayo Newhall Memorial Hospital.
Employers have been trying everything to thwart attempts by employees to bring massive class and representative wage and hour actions against them in state court. In Vasserman, the employer argued the employee’s putative class action wage and hour lawsuit should have to go to arbitration pursuant to the CBA’s grievance and arbitration procedure. The court disagreed.
The court ultimately held that for an employee covered by a CBA to be compelled to arbitrate employment-related statutory claims, the language in the CBA must include a “clear and unmistakable waiver of the right to a judicial forum for claims based on statute.” It will not suffice for the CBA to merely include language whereby the employer agrees to comply with a particular statute; rather the CBA must specifically mention the statute(s) and address the waiver of members’ rights to a judicial forum in a clear and unmistakable fashion. In this case, the Court decided the arbitration provision in the applicable CBA did not meet the standard.
The Vasserman Court expressly stated, however, that it was not deciding the issue of whether a Union even has the ability to waive its members’ statutory rights via a CBA. Thus, it remains to be seen whether an employer can ultimately succeed in compelling arbitration of an employee’s statutory claims even if the applicable CBA contains the requisite “clear and unmistakable” language. For now, employers who have CBAs up for renegotiation may wish to consider proposing language in line with the Vasserman decision so they may have the option to file a motion to compel arbitration of a CBA-covered employee’s statutory claims in the future.