©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 59 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,486 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.487 Her only defense was that she did not actually read the arbitration agreement when it was presented to her, but “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, . . . ‘a person is deemed to have read a contract that they have signed.’”488 3. Proving An “Establishment” The federal EPA requires plaintiffs to compare their wages against other employees within the same physical place of business in which they work. According to regulations issued by the EEOC, a single establishment “refers to a distinct physical place of business” within a company. “[E]ach physically separate place of business is ordinarily considered a separate establishment” under the EPA. The regulations contrast this with the entire business, or “enterprise,” which “may include several separate places of business.”489 Courts presume that multiple offices are not a “single establishment” unless unusual circumstances are demonstrated.490 Not surprisingly, defining the scope of the establishment for purposes of comparing salaries and wages is a frequently contested issue in EPA litigation. For example, in Moazzaz v. Metlife, Inc.,491 a Senior Vice President and Chief Administrative Officer and Interim Global Head of Digital Strategy alleged she was paid less than male employees with similar-level positions, such as the Head of Japan Operations and Europe, Middle East and Africa Chief Financial Officer.492 The employer argued that those positions were too geographically separate from plaintiff’s position and therefore not within the same “establishment” as defined by the EPA. However, the court held that plaintiff had alleged sufficient facts at the pleading stage to allow the case to proceed based on those comparators. The court noted that “[t]he foreign comparators all appear to be members of [employer’s] leadership team,” who reported directly to plaintiff and other centralized high-level officers. The court concluded that “[i]t is thus improbable that foreign [employer] personnel, instead of, say, . . . the 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”). 486 Plazas Rocha v. Telemundo Network Group LLC, No. 20-cv-23020-BLOOM/Louis, 2020 WL 6679190 (S.D. Fla. Nov. 12, 2020). 487 Id. at *4. 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. Id. 488 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)). See also Knepper v. Ogletree, Deakins, Nash, Smoak & Stewart, P.C., No. 8:19-cv-60-JVS-ADS, 2019 WL 1449502 at *5 (N.D. Cal. Mar. 26, 2019) (compelling arbitration after finding that plaintiff had received email notifications informing her about the arbitration provisions and allowing her a chance to opt out, meaning that “the only potential dispute is whether [plaintiff] read the three email notices, not whether she received them”). 489 29 C.F.R. §1620.9(a). 490 See Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1017 (11th Cir. 1994) (holding that evidence did not “demonstrate the level of centralization necessary to justify treating all of the company's technical writers as working at a single establishment” where “the specific salary to be offered a job applicant is determined by the local supervisor”); Kassman v. KPMG LLP, 416 F. Supp. 3d 252, 287 (S.D.N.Y. 2018) (finding that pay and promotion decisions were not sufficiently “centralized” to amount to “unusual circumstances” warranting a finding that the many offices and practice areas qualify as a single “establishment” under the EPA because “although [defendant] set generally applicable guidelines, individual pay and promotion decisions were left to the discretion of local practice area leaders,” which decisions were “reviewed by firm leadership on an aggregate basis against budget”). 491 Moazzaz v. Metlife, Inc., No. 19-cv-10531 (JPO), 2021 WL 827648 (S.D.N.Y. Mar. 4, 2021). 492 Id. at *5.
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