A contract-compliant conciliation offer can still be presented in a staff manual. However, this offer must be clear and clear, which is an issue that requires careful drafting of the manual, including its references to arbitration, and the elimination or limitation of disclaimers in the manual, which would fuel an argument that the parties have never entered into a binding contract. If an arbitration agreement is contained in a manual with a disclaimer, for example, that the manual is “not a contract” or that allows a change of manual at the employer`s discretion, a court may find that the arbitration proposal contained in the manual was not an accepted and binding contractual offer for the employee. In November 2017, a human resources consultant working for the employer distributed copies of a revised staff manual to all employees. The employee signed the “Reception and Recognition” page (the last page of the manual) and returned it to the human resources advisor on November 7, 2017. In the end, the Eighth Circuit concluded that no contract had been formed to solve a problem through the manual. The court focused on whether clicking on the employee`s manual link constituted acceptance of a contract offer that the delegation clause or the broader arbitration provisions in the manual were able to verify. The company`s arguments depended on evidence that it and the staff were parties to a valid dispute settlement agreement. However, the arbitration agreement and the delegation clause on which it was based were only included in the addendum of the company`s manual (manual). This manual was not physically distributed to or signed by the employee. On the contrary, during her employment, the employee was twice forced to click on the manual containing the conciliation and delegation agreement with a computer mouse. After clicking, the company`s computer system automatically generated confirmation that the directive had been revised. If the manual were to be clicked, the employee would also have received a link to open a full copy of the manual, but no evidence was provided that she had done so.
In addition, the employee denied that he had read the arbitration policy. Overall, the bill prohibits any person, including the employer, from requiring a candidate or worker as a condition of employment, ongoing employment or obtaining an employment-related benefit from waiving “any right, forum or procedure” to revoke a violation of a provision of the California Fair Employment and Housing Act (FEHA) or the California Labor Code. These include law, civil action or a complaint. Court or other state agency. Moreover, while the law appears primarily geared towards so-called “mandatory” arbitration agreements, it also prohibits employers from “using an agreement that requires a worker to opt out of a waiver or take positive steps to preserve his rights.” Therefore, the law also applies to employers who request arbitration agreements from their employees, even if this agreement offers the worker the opportunity to opt out of the arbitration agreement at a later date. Prior to AB 51, California courts had found these opt-out provisions to be positive. On October 13, 2019, California Gov. Gavin Newsom signed Assembly Bill 51 – a law that makes it illegal for a California employer to require candidates or employees to sign an arbitration agreement as a condition of employment. Currently, the use of mandatory arbitration agreements and class action waivers is extremely common among California employers, and recent U.S. Supreme Court jurisprudence has strongly supported their applicability.
While the bill – which will come into force on January 1, 2020 – is likely to be subject to legal challenge, given that federal legislation anticipates it, AB 51 is a clear indication of California`s intention to use mandatory measures.