Developments In Equal Pay Litigation - 2022 Update

© 2022 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 51 Similarly, in Bester v. Compass Bank , 436 the District Court for the Northern District of Alabama compelled two contract analysts to arbitrate their EPA claims against their bank employer even though the plaintiffs had alleged that the arbitration agreement was enforced in a discriminatory manner. The district court held that the bank’s allegedly discriminatory enforcement of the arbitration agreement does not render the agreement unenforceable: “the plaintiffs must raise the alleged discriminatory enforcement in arbitration with their other claims.” 437 And in Davidow v. H&R Block, Inc. , 438 the court compelled a seasonal tax preparer into arbitration regarding, among other things, her EPA claim. The court first held that the arbitration agreement bound both parties to the contract and therefore there was mutuality of promise and sufficient consideration to create a valid and enforceable arbitration agreement. 439 The court then concluded that the arbitration agreement included plaintiff’s claims because she had agreed to arbitrate claims arising under federal statute. 440 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 , 441 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 . . . .” 442 The court held that the clause was valid, but found that the plaintiff’s disputes did not fall within the scope of its provisions because 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. 443 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.” 444 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 , 445 the plaintiff attempted to evade an arbitration agreement by claiming 436 Bester v. Compass Bank , No. 2:18-cv-1817-AKK, 2019 WL 1897176 (N.D. Ala. Apr. 29, 2019). In that case, the two contract analysts had signed an application containing an agreement to arbitrate any potential claims concerning any aspect of their employment relationship with the bank. Id. at *1. The court held that a valid arbitration agreement existed between the parties and that the broad language of the arbitration provision included plaintiff’s EPA claims within its scope. Id. at *2. However, plaintiffs alleged that the bank should be estopped from enforcing the arbitration agreement because it allegedly enforced it in a discriminatory manner; according to plaintiffs, the bank did not enforce the agreement against Caucasian or male employees. Id. at *3. 437 Id. at *3. The district court also rejected plaintiff’s fraudulent inducement arguments. Plaintiffs alleged that they were fraudulently induced into the arbitration agreement based on the bank’s representation that it is an equal opportunity employer. Id. The court held that that representation involves the employment contract generally, rather than the agreement to arbitrate itself. Id. 438 Davidow v. H&R Block, Inc. , No. 19-cv-1022-cv-W-ODS, 2019 WL 2090690 (W.D. Mo. May 13, 2019). 439 Id. at *4. 440 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”). 441 Sorathia v. Fidato Partners, LLC , 483 F. Supp. 3d 266 (E.D. Pa. 2020). 442 Id. at 273. 443 Id. at 275-76. 444 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 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”). 445 Plazas Rocha v. Telemundo Network Grp. LLC , No. 20-cv-23020-BLOOM/Louis , 2020 WL 6679190 (S.D. Fla. Nov. 12, 2020).