Developments in Equal Pay Litigation

40 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP concluded that the arbitration agreement included plaintiff’s claims because she had agreed to arbitrate claims arising under federal statute. 326 Careful drafting is critical when it comes to the enforceability of arbitration agreements. Imprecise language can sometimes provide employees an escape route back to federal court. For example, in Sorathia v. Fidato Partners, LLC , 327 the plaintiff alleged that her employer violated the EPA, denied her overtime, and retaliated against her. The employer sought to compel arbitration pursuant to an arbitration clause within an employment agreement that required arbitration of “[a]ny controversy or claim arising out of or relating to this Agreement . . . . ” 328 The court held that the clause was valid, but found that the plaintiff’s disputes did not fall within the scope of its provisions. Noting that arbitration is a matter of contract between the parties, the court found that the employment agreement at issue was primarily directed at the handling of confidential information and restrictions on competition and solicitation, rather than the issues raised by plaintiff’s complaint. 329 Nothing in the agreement mentioned the issues of hours, compensation, discrimination or retaliation. The mere fact that the agreement was termed an “employment agreement” was not enough to bring plaintiff’s claims within its scope: “Because the arbitration clause is limited to ‘any controversy or claim arising out of or relating to this Agreement ,’ and Plaintiff's claims do not arise out of or relate to the Agreement, I decline to find that Plaintiff's claims fall within the scope of the arbitration clause.” 330 The process that an employer uses to ensure that employees review and consent to an arbitration agreement before hire can be equally critical. Employees will sometimes argue that a contract to arbitrate was never formed. Proper documentation can establish that it was. For example, in Plazas Rocha v. Telemundo Network Group LLC , 331 the plaintiff attempted to evade an arbitration agreement by claiming that she never saw or read the arbitration agreement prior to being hired, and that if she had, she would not have accepted employment. The court found, however, that the evidence clearly demonstrated that she was repeatedly presented with an opportunity to review the agreement and was informed that her employment was contingent on her acceptance of the agreement . 332 Plaintiff had no explanation for the documentation presented by the defense, which showed that she had acknowledged and accepted the terms of the agreement during the onboarding process, including in her offer letter, which expressly made her employment contingent on that acceptance. 333 The court held that her only defense appeared to be that she did not actually read the arbitration agreement when it was presented to her. But the court held that “it is well established that a party cannot succeed in invalidating an agreement based solely on the claim that she did not read the agreement because, under Florida law, ‘a person is deemed to have read a contract that they have signed.’” 334 Similarly, in Knepper v. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. , 335 a non-equity shareholder of the firm alleged that “Ogletree’s female shareholders face discrimination in pay, promotions, and other 326 Id. at *6. See also Carrone v. Unitedhealth Grp., Inc. , No. 20-CV-5138 (FLW), 2020 WL 4530032 (D.N.J. Aug. 6, 2020) (compelling arbitration of all matters to the arbitrator, including issues as to the agreement’s unconscionability, because the arbitration agreement delegated such “gateway” issues to the arbitrator: “Defendants have presented clear and unmistakable evidence of an agreement to arbitrate the gateway issues. In that regard, the Agreement expressly incorporates the rules of the AAA, one of which delegates the gateway issue of arbitrability to the arbitrator”). 327 Sorathia v. Fidato Partners, LLC , 483 F. Supp. 3d 266 (E.D. Pa. 2020). 328 Id. at 273. 329 Id. at 275-76. 330 Id. at 277 (emphasis in original). See also Ramos v. Total-Western, Inc. , No. B295468, 2020 WL 1283099, at *5 (Cal. Ct. App. Mar. 18, 2020) (refusing to compel arbitration where arbitration provision in collective bargaining agreement did not clearly and unmistakably waive plaintiffs’ right to pursue claims, including an equal pay claims, under California’s Fair Employment and Housing Act, finding that: “Article Seven of the CBA permits the arbitration of employee claims arising under the Labor Code but explicitly preserves an employee’s right to pursue those claims in a judicial forum”). 331 Plazas Rocha v. Telemundo Network Grp. LLC , No. 20-CV-23020-BLOOM/Louis , 2020 WL 6679190 (S.D. Fla. Nov. 12, 2020). 332 Id. at *4. 333 Id. 334 Id. at *5 (quoting Sultanem v. Bright House Networks, LLC , No. 8:12-CV-1739-T-24TBM, 2012 WL 4711963, at *2 (M.D. Fla. Oct. 3, 2012)). 335 Compl., Knepper v. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. , No. 3:18-CV-00304 (N.D. Cal. Jan. 12, 2018), ECF No. 1.