California Court Requires Clear and Unmistakable Waiver to Enforce Arbitration Agreement

Volpei v. County of Ventura, No. B243954 (November 7, 2013): In a recent decision, a California Court of Appeal held that an arbitration provision in a collective bargaining agreement did not waive an employee’s individual right to sue his employer. The court held that the arbitration provision did not include a clear and unmistakable statement that arbitration was the sole remedy for statutory claims, such as claims brought under the California Fair Employment and Housing Act (FEHA).

Mark Volpei was employed as an investigator for the Ventura County District Attorney’s Office since 1994. During his employment, the County of Ventura and the sheriffs’ association (which was Volpei’s bargaining representative) entered into a memorandum of agreement (MOA) governing the conditions of employment for association members. In April 2011, Volpei filed a lawsuit claiming that the county harassed and retaliated against him for testifying against it in a sexual harassment case brought by one of his coworkers. In his lawsuit, Volpei also alleged disability discrimination and other claims under FEHA. The county filed a motion to compel arbitration based on the MOA, which contained a provision stating that unresolved grievances “may be submitted to arbitration by the Association.”

The trial court denied the county’s petition to compel arbitration, stating that the arbitration provision was permissive and unilateral and did not clearly and unmistakably waive Volpei’s right to bring a statutory discrimination claim in court. The Court of Appeal agreed with the trial court that the MOA’s provision that unresolved grievances may be submitted to arbitration by the association was not a clear and unmistakable waiver of Volpei’s right to a judicial forum and “did not unambiguously require arbitration as the sole and exclusive remedy for his statutory discrimination claim.”

According to Spencer Skeen, the managing shareholder of the San Diego office of Ogletree Deakins: “This case illustrates how important it is to be precise when drafting an arbitration agreement. An arbitration agreement should state that arbitration is mandatory through use of language such as ‘all claims shall be arbitrated’ or ‘all claims must be arbitrated.’ It should also provide that it is the exclusive method for adjudication of any type of claim, including statutory discrimination claims. If it does not do these things, a court may not enforce the arbitration agreement, at least not with respect to statutory discrimination claims.”