An Administrator's Guide to California Private School Law

Chapter 4 - Employment Contracts And Separation Of Employees

related documents to be returned by employees should not include employee or faculty handbooks, as employees are entitled to retain these handbooks to provide “to government agencies for lawful investigative purposes” 425 pursuant to the National Labor Relations Board. N. U SE O F I MAGE O R L IKENESS A school may not use the image or likeness of an employee without his or consent. 426 Therefore, we advise that employment agreements include language providing for the consent of the school to use an employee’s image or likeness in promotional and other material. O. D ISPUTE R ESOLUTION This provision allows the parties to agree upon how they will resolve any disputes that may arise concerning the contract and the employment relationship. Examples of these dispute resolution options include internal processes such as a meeting with the head of school, a hearing before the board, arbitration, mediation, and litigation in court. Alternative dispute resolution options may be favorable for both the employee and the school because they sometimes allow for a faster resolution of issues, may be more cost-effective, and are more informal and confidential. Binding arbitration provisions continue to be heavily litigated. Many courts, as a matter of contract law, require that arbitration agreements be mutual. An agreement that only binds the employee to arbitration for his or her claims against the employer, but allows the employer to pursue court action against the employee has been deemed to be unconscionable and will not be enforced by most courts. 427 Schools should be careful to avoid arbitration provisions that begin with “employee agrees,” “employee waives,” or “employee understands.” Binding arbitration clauses have also been found to be unconscionable in the following situations:

 When it compels the arbitration of claims that are most likely to be brought by an employee (e.g. tort claims, discrimination claims), and exempts claims that are most likely to be brought by an employer (e.g. injunctive or equitable relief);  When it authorizes judicial review of awards that exceed a certain monetary amount that, in application, would only allow judicial review of awards against the employer; 428  When it only provides a short time limit for demanding arbitration; 429  When employer has the right to unilaterally modify the arbitration agreement; 430  When employer has the right to select the arbitrator, or when the employee is required to select the arbitrator from a panel of arbitrators selected by the employer; 431

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