An Administrator's Guide to California Private School Law

Chapter 4 - Employment Contracts And Separation Of Employees

services. Individuals will maintain the right to file a civil action with the Attorney General, a law enforcement agency, the Department of Fair Employment and Housing, or any court or other governmental entity. 451 While this law relates to hate crime statutes and does not expressly apply to employment contracts, the California legislature intended for goods or services contracts to include contracts for employment. 452 The purpose of the law is to ensure that a contract waiving any rights under the Ralph Civil Rights Act or the Bane Civil Rights Act is a matter of voluntary consent and not coercion. 453 The party seeking to enforce an arbitration agreement has the burden of proving that the agreement was knowing, voluntary, in writing, and not made as a condition of the contract. 454 Due to the technical nature of arbitration provisions, and the changing and developing nature of the law in this area, schools should consult with legal counsel when drafting an arbitration provision or considering whether to include such a provision in an employment contract. Domenichetti v. Salter School, LLC (D. Mass., Apr. 19, 2013, No. CIV.A. 12- 11311-FDS) 2013 WL 1748402 Victoria Domenichetti was employed in the school’s human resources department when she requested leave under the Family and Medical Leave Act (FMLA) to care for her newborn. Later that same day, Domenichetti’s peer was promoted and the school reduced her position to part-time, which also resulted in reduced benefits. She sued the school for violations of the FMLA and the school sought to compel arbitration. The school’s employee handbook contained an arbitration provision and Domenichetti had signed an acknowledgement form stating that she received the handbook and that the contents of the handbook could be changed at any time at the discretion of the school. The acknowledgment form did not specifically reference the arbitration provision. The Court concluded that Domenichetti was not contractually bound

to submit to arbitration because the arbitration provision was not printed separately from the handbook, the school did not require any additional employee signature affirming the arbitration provision, and the school’s acknowledgement form stated that the handbook could be modified at the school’s discretion. Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695 Valerie Serpa sued her employer, California Surety Investigations (CSI), for sexual harassment, discrimination, and wrongful termination. CSI sought to compel arbitration. CSI’s handbook contained an arbitration provision and CSI also had required that Serpa sign a separate document acknowledging receipt. The Court concluded that, since Serpa had signed a separate document acknowledging receipt of the arbitration provision, this made the agreement mutual and thus enforceable.

Schools should determine whether their employment insurance covers arbitration. If not, the cost to the school of arbitrating may be prohibitively expensive.

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