An Administrator's Guide to California Private School Law

Chapter 4 - Employment Contracts And Separation Of Employees

 Where the arbitrator is authorized to determine the enforceability of an arbitration agreement in a manner that imposes unfair or one-sided burdens that contrast with the inherent features of arbitration; 432  When the deadline for demanding arbitration is shorter than the applicable statute of limitations (although this factor alone is typically insufficient to render it unconscionable); 433  When one side’s right to discovery is limited; 434  When it contains an overly broad confidentiality requirement that may prevent the employee from contacting other employees who may have helpful information; 435  When it limits possible damages or remedies since an arbitration agreement must provide for all types of relief that would be available in court; 436  When it requires that the proceedings be held in a location that would cause the employee to incur a substantial financial burden; 437  When it is included in an employee handbook, which states that the employer has the right to change the handbook at any time without warning, and the employee only signed a general form acknowledging receipt of the handbook that did not mention the arbitration provision specifically; and, 438  When it is included in an employee handbook stating several times that the handbook does not create any employment contract and does not create any legally enforceable obligations. 439  The arbitration agreement must be in its own section or it may be a separate attachment or exhibit that is incorporated into the employment contract; 440  A clear and conspicuous heading in boldfaced font; 441  A broad statement that any and all disputes that arise under the employment agreement between the school and the employee must be settled in binding arbitration;  Ensure that the arbitration agreement applies when either party initiates arbitration or files a suit in court;  A statement that the agents of the school are covered, including heads of school, administrators, teachers, the board of trustees, board members, insurers, etc.;  A statement that the parties “knowingly and intentionally” waive their right to trial by jury and court; 442

If a school wants to require the arbitration of disputes, the school should ensure that the arbitration clauses in employment contracts contain all of the following elements:

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 120