Below is a major case that was the turning point in Employment Arbitration Clauses. Our Law Office successfully litigated against NCR a procedural win for all the NCR Employees of California with the successful Publication of  Fitz v. NCR Corp., 118 Cal. App. 4th 702.

Under Armendariz v. Foundation Health Psychcare Services, Inc., (2000) 24 Cal. 4th 83  the Court held that "the imposition of  substantial forum fees is contrary to public policy, and is therefore grounds for  invalidating or "revoking" an arbitration agreement and denying a petition to compel arbitration under Code of Civil Procedure sections 1281 and 1281.2, we hold that the cost issues should be resolved not at the judicial review stage but when a court is petitioned to compel arbitration."

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Fitz v. NCR Corp., (2004) 118 Cal. App. 4th 702  "Plaintiff (Fitz) employee brought a wrongful termination complaint against defendant employer (NCR). The employer brought a motion to compel arbitration under its dispute resolution policy. The Superior Court of San Diego County (California) denied the motion to compel arbitration, finding that the employer's policy was procedurally and substantively unconscionable. The employer appealed." 

The OUTCOME: The court affirmed the order denying the employer's motion to compel arbitration. A copy of the court’s opinion can be viewed HERE.

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Even newer (2009) California court decisions have refused to enforce arbitration agreements based on Armendariz.  On March 17, 2009, the Second District Court of Appeal refused to compel arbitration of an employee’s class action wage and hour claims in Sanchez v. W. Pizza Enters., Inc. 172 Cal. App. 4th (2009).   Relying on Armendariz, the court held that a provision that allowed an employer to select a single arbitrator lacked mutuality because the employee had no input with regard to the arbitrator’s selection.  Moreover, the court noted that the provision gave “rise to a significant risk of financial interdependence between [the employer] and the arbitrator . . . and an opportunity for [the employer] to gain an advantage through its knowledge of and experience with the arbitrator.” 

Looking at a 2008 decision in Ontiveros v. DHL Express (USA), Inc. 164 Cal. App. 4th (2008).  the First District Court of Appeal declined to require arbitration of an employee’s sex discrimination, sexual harassment, and retaliation claims.  The court held that several provisions in the arbitration agreement in dispute were unenforceable, including a provision requiring the employee to pay portions of the costs unique to arbitration and a provision severely limiting discovery. Fitz v. NCR Corp., 118 Cal. App. 4th 702 (2004) (holding arbitration agreement to be unenforceable under Armendariz)

 EDITORIAL:

Attorney Diane T. Letarte was able to get the NCR Employment Arbitration VOIDED for all the California Employees, therefore opening the door the be able to sue NCR in Court vs. an Arbitration forum. This forum is normally less favorable to employees given the limited DISCOVERY aspect in employment cases and the fact that the employer holds all the cards. With the assistance of local San Diego Appellate Attorney Leon Saad leonsaad@msn.com  (619-230-8529),  the Fitz v. NCR Corp., 118 Cal. App 4th 702 decision was Affirmed and Published.    

- A BIG win, for the NCR California employees!