Wednesday, February 8, 2017
C.A. Declines to Apply Arbitration Clause to Labor Claims
By KENNETH OFGANG, Staff Writer
A worker’s statutory claims against her employer are not subject to binding arbitration, on the basis of a collective bargaining agreement, absent unambiguous language to that effect in the CBA, the Court of Appeal for this district ruled yesterday.
Div. Four affirmed Los Angeles Superior Court Judge Jane L. Johnson’s order denying Henry Mayo Newhall Memorial Hospital’s petition for arbitration of Tanya Vasserman’s Labor Code and other statutory claims relating to meal and rest breaks, unpaid wages, and unpaid overtime compensation.
Vasserman worked at Henry Mayo as a registered nurse for about three weeks in 2014, and filed a class action complaint about two months after her employment ended. She alleged that hourly employees, without valid Labor Code exemptions, were required to work shifts that exceeded eight hours per day and in excess of 80 hours per pay period, and the hospital failed to pay required overtime wages for this work.
Vasserman also alleged that the hospital did not provide required meal breaks, required workers to work during meal breaks, and did not provide pay for missed meal breaks in violation of the Labor Code. She further alleged that the hospital did not provide itemized wage statements, and inappropriately calculated wages through a “rounding policy” in which calculations for time worked were rounded downward, resulting in failure to pay employees for actual time worked.
She subsequently amended the complaint, including a representative claim under the California Labor Code Private Attorney Generals Act.
Petition to Compel
In petitioning the court to compel arbitration, the hospital cited its CBA with the California Nurses Association. The agreement establishes a three-step grievance process, requiring an employee to present a grievance to his or her immediate supervisor within 10 days of the occurrence leading to the grievance, and then to meet with the supervisor.
If the grievance is not resolved at that step, the employee and/or a union representative meets with the director of human resources. If that meeting does not result in resolution, the final step is arbitration pursuant to Federal Mediation and Conciliation Service rules.
In denying the petition to compel, Johnson said there were no indicia that the parties to the CBA intended to compel submission of statutory claims to the grievance process. A waiver of the right to sue for Labor Code violations, she said, must be “clear and unmistakable,” a standard that requires “more specificity…than the vague ‘any claim or dispute’ language found in Defendant’s CBA arbitration provision.”
Justice Audrey Collins, writing for the Court of Appeal, said the trial judge was correct.
Nowhere in the grievance and arbitration provisions, the justice noted, is there any reference to the Labor Code or other state or federal statutes, or any language suggesting that the union intended to waive employees’ rights to bring statutory claims in court.
She rejected the hospital’s argument that by including specific articles on compensation and meal and rest periods in the CBA, the parties clearly and unmistakably intended to submit all disputes regarding those subjects to the grievance/arbitration process. Collins pointed out that neither of those articles reference state laws.
There is, she acknowledged, a provision in the CBA that requires the hospital to pay penalties required by the Labor Code. But the clause “does not make compliance with the Labor Code an express contractual commitment,” she noted, and in fact makes no mention of the Labor Code other than with respect to penalties.
A waiver, she said, cannot be inferred from “broad, nonspecific language…not coupled with an explicit incorporation of statutory requirements.”
Attorneys on appeal in Vasserman v. Henry Mayo Newhall Memorial Hospital, 17 S.O.S. 595 were Michael S. Kun and Kevin D. Sullivan OF Epstein Becker & Green for the defendant, and Joseph Antonelli and Janelle C. Carney for the plaintiff.
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