In Diaz v. Sohnen Enterprises, the Court of Appeal considered whether an employee was subject to an arbitration policy that she did not sign. Plaintiff filed a complaint alleging workplace discrimination on December 22, 2016. Twenty days earlier, on December 2, 2016, she and her coworkers received notice at an in-person meeting that the company was adopting a new dispute resolution policy requiring arbitration of all claims. At that meeting, the company informed all employees about the new dispute resolution agreement and indicated that continued employment by an employee who refused to sign the agreement would itself constitute acceptance of the dispute resolution agreement. All employees received a copy of the agreement to review at home. On December 19, 2016, representatives of the company met privately with Plaintiff who had indicated on December 14 that she did not wish to sign the agreement. The company said that continuing to work constituted acceptance of the agreement. On December 23, 2016, the Plaintiff and her lawyer presented a letter dated December 20, 2016 rejecting the agreement but indicating that she intended to continue her employment. On the same date, she also served the complaint in this action. On January 17, 2017, the company sent a demand for arbitration based on the fact of the continued employment at the company. The trial court heard arguments, and denied the motion to compel arbitration. The trial court, in its oral ruling, held that the agreement was a “take-it or leave-it contract and (sic) adhesion. There is no meeting of the minds.” The court made no factual findings, nor did it address whether the agreement was substantively unconscionable. The Court of Appeal held that when a worker continues employment after notification that an agreement to arbitration is a condition of continued employment, that employee has impliedly consented to the arbitration agreement. An employer can unilaterally change the terms of an at-will worker’s employment agreement as long as it provides notice of the change, and the alteration does not violate a statute or breach an implied or expressed contractual agreement. An adhesive agreement to arbitrate can still be enforced in the absence of surprise or sharp practices demonstrating substantive unconscionability. This was a very bad opinion for workers/employees.
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