Though California Labor Code section 432.6 prohibiting mandatory arbitration agreements has been the subject of many legal challenges, the safest course of action for employers is to have the agreement voluntary. In addition, in California, enforceable arbitration agreements must include terms that provide:
· A neutral arbitrator.
· Adequate discovery.
· The same relief that would be available in court.
· The arbitrator’s decision to be written.
· The employer pays the cost and fees unique to arbitration.
Arbitration agreements can be helpful to employers, especially if they include a provision that all disputes must be brought on an individual basis, and waives the right to bring a class action or collective action. However, representative actions under the Labor Code Private Attorneys General Act cannot be forced into arbitration. It’s always a best practice to double-check the language in your arbitration agreements to make sure that none of the provisions can be attacked as being procedurally or substantively unconscionable.
However, beware, because regardless of this language representative actions under the Labor Code Private Attorneys General Act can.