Lessons Learned Each of these decisions provides some real-life lessons for employers who utilize arbitration agreements. In light of these cases, employers should consider the following: • California employers should review and, if needed, revise their arbitration agreements to ensure they do not carve out representative PAGA claims and will otherwise withstand legal scrutiny. • Arbitration agreements should always be considered a “standalone” document signed and dated by both parties, along with an internal code identifying which version of the company’s arbitration agreement the employee is signing. • As electronic signature options become more common in the workplace, employers need to make sure they understand how the electronic signing system works, how party signatures are recorded and how finalized documents are distributed and to whom. • If signing the agreement is voluntary, the employer should have the means to easily determine who has—and who has not—signed the agreement. • Technology can change rapidly in the workplace, so it is important that system audits are regularly performed to ensure accessibility of even the company’s oldest arbitration agreements.
into an arbitration agreement centered around Trinity’s testimony that she had never seen or agreed to the arbitration agreement, nor would she have ever accepted the position if she knew agreeing to arbitration was a condition of employment. In rebuttal, LINA claimed its confirmatory email evidenced Trinity’s review and acceptance. The problem LINA faced was that it could not produce a copy of the confirming email nor account for how it was generated, stored or maintained. Absent any tangible evidence to contradict Trinity’s testimony, the court shifted its focus to the credibility of the witnesses (i.e., Trinity and LINA’s Employee Relations Managing Director) and agreed to Trinity’s request for an evidentiary hearing. After listening to testimony from both parties, the court determined that LINA had failed to prove Trinity agreed to the arbitration provision in the employee handbook. The Court gave significant weight to the fact that despite LINA’s confidence an automatic email was generated and sent to Trinity, it could not produce the email nor confirm whether the email even existed. Ultimately, the party seeking arbitration has the burden of proving (by a preponderance of the evidence) that an agreement to arbitrate exists. First and foremost, this means producing a written agreement. Absent the production of a written agreement, evidence of sufficient weight and character must be presented such that the court could not reasonably reject it. LINA failed on both accounts.
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