sexual harassment arbitration

Ending Arbitration of Sexual Harassment

sexual harassment arbitrationAllegations of sexual harassment and misconduct against movie producers, actors, business leaders, and politicians are on the rise across the country.  So much so, a bipartisan group in Congress is blaming the increased use of nonpublic arbitration for keeping allegations quiet. Senators Kirsten Gillibrand, D-NY and Lindsey Graham, R-SC are leading a group of legislators seeking passage of a bill intended to prohibit sexual harassment and gender discrimination cases from being resolved privately in arbitration. The bill, Ending Forced Arbitration of Sexual Harassment, would prohibit businesses from enforcing predispute arbitration agreements of sexual harassment and discrimination claims covered under Title VII of the Civil Rights Act of 1964.


Sexual Harassment

Sexual harassment can occur when a supervisor demands sexual favors from a subordinate in return for positive job treatment (or threats of negative consequences if the employee refuses to comply). Sexual harassment need not only be based on this type of quid pro quo activity however.

Any unwelcome conduct of a sexual nature which is so severe and pervasive that it creates a hostile work environment is also considered illegal harassment. In addition, it is not just a supervisor who can create a hostile environment – co-workers and even customers can create this atmosphere through inappropriate touching, obscene talk or gestures, graffiti, etc. This type of harassment can be perpetrated by females upon males as well as vice versa, and even among members of the same sex.

A “predispute arbitration agreement” is defined by the proposed bill as “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.” SB 2203 (Gillibrand) targets arbitration agreements that an employee might be asked to sign as a condition of getting hired or remaining employed.  The bill does not seek to eliminate predispute arbitration agreements in connection with other types of discrimination claims.

California Employers
SB 2203 does not address class action waivers, i.e. requiring that claims be asserted individually and not on a class basis. While class action waivers can exist outside the context of arbitration, they are not addressed in the bill. The bill also does not address the use of confidentiality agreements following the settlement of sexual harassment claims.

SB 2203 has just begun its journey in the U.S. Congress and it remains to be seen how it will be received. In the meantime, make sure you have anti-harassment policies in place and that you communicate them to employees in as many ways as possible to include handbooks, policy manuals, intranet sites, etc. And while recent media coverage has focused on sexual harassment, your policies should be broad enough to address harassment of any kind, including conduct based on individuals’ race, color, nationality, religion, disability and the like. Lastly, some employees may be unsure about what constitutes “harassment.” Your policies should describe what types of behavior or actions can constitute harassment, and that in no uncertain terms won’t be tolerated in any way.

California Employees

It is important for employees to know that they must make it clear that any conduct of a sexual nature is unwelcome. In other words, offended employees should tell the offender to stop. If the behavior continues, it should be reported to a supervisor or the human resources department in writing. Employees may be tempted to ignore the harassment, hoping it will not continue, but this frequently only makes the situation worse. And, staying quiet about it can potentially impact the employee’s legal rights here in California as well as in other states.

The labor and employment lawyers at Kingsley & Kingsley are well-versed in representing employees throughout California who have been the victim of sexual harassment. Our lawyers represent employees in civil litigation in state and federal courts, and in mediations and administrative hearings before boards and commissions such as the California Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC).

Proving sexual harassment can be challenging, but with the right legal team, it can be done. If you have been a victim of sexual harassment, there are a variety of ways that the qualified lawyers at Kingsley & Kingsley can assist you. Take advantage of a free initial consultation to discuss your specific case by calling the toll free number (888) 500-8469 or by clicking here to contact us regarding your case.


right to compel arbitration employment law

Appellate Court Finds Defendant May Lose Right to Compel Arbitration

California Court of Appeal finds in Sprunk v. Prisma LLC that a defendant in class action litigation can waive its right to seek arbitration against absent, unnamed class members by deciding not to compel arbitration against the named plaintiff within a reasonable timeframe.


Maria Sprunk is the named plaintiff in a wage and hour class action case against Prisma, LLC , doing business as “Plan B”. Sprunk and the other class members are dancers who performed at Plan B, an exotic dance bar and restaurant located in Los Angeles, California. Sprunk alleges that the dancers were misclassified as independent contractors rather than employees, and that they were consequently denied various benefits that the law requires for employees, such as minimum wages, meal periods, and reimbursement of expenses. Sprunk also alleges that Plan B misappropriated tips in her complaint filed on October 7, 2011. 

Sprunk and all other class members signed contracts containing an arbitration clause. There were two versions of the arbitration clause–one version that did not specifically address class arbitration while the other version (effective July 2011), contained an express waiver. Sprunk signed the first version of the agreement. On November 28, 2011, Plan B sent an arbitration demand. 

Timeline of Subsequent Events

December 30, 2011 – The parties filed a joint initial status report in which Plan B stated that it “wishes to file a motion to compel arbitration at the earliest available opportunity.” Sprunk stated that she intended to oppose the arbitration motion, but agreed that Plan B’s “contemplated motion to compel arbitration is an issue that should be resolved before discovery on the merits, or discovery with respect to class certification issues, is commenced.”

right to compel arbitration employment law

January 25, 2012 – Plan B filed a “Petition to Compel Individual Arbitration and Stay Superior Court Proceedings.” The petition sought arbitration of Sprunk’s individual claims only.

February 15, 2012 – Sprunk filed an opposition to the petition in which she argued, among other things, that the “extremely broad” arbitration clause that Sprunk signed permitted arbitration of class claims. For that reason, Sprunk claimed that the court must decide “whether or not to order arbitration of all individual and class claims,” or alternatively should deny Plan B’s motion on the ground that it sought to limit the arbitration only to individual claims. Sprunk also argued that, to the extent the arbitration agreement is “construed as a class action waiver,” Plan B could not compel arbitration because such a waiver would interfere with the right of employees to engage in collective action under federal law. In support of that argument Sprunk cited a January 3, 2012 decision by the National Labor Relations Board (Horton I). 

September 6, 2012 – Plan B filed a notice withdrawing its motion for arbitration. Plan B filed an answer the same day. The answer included several affirmative defenses based upon the arbitration agreements. Plan B also filed a cross-complaint, which it amended on November 14, 2012.

December 19, 2012 –  Sprunk filed a demurrer and a motion to strike in response to the cross-complaint. Before those motions could be heard, Plan B dismissed the cross-complaint without prejudice. The parties proceeded with discovery. Sprunk served interrogatories and deposed four Plan B witnesses. Plan B served a document request on Sprunk and took her deposition. 

February 20, 2013 – Plan B responded to Sprunk’s interrogatories, again identifying the arbitration agreements as an affirmative defense.

September 19, 2014 – Sprunk filed her class certification motion. In opposing class certification, Plan B
argued that a class action was not superior to other forms of litigation because the class members had signed arbitration agreements. Citing several federal district court decisions, Plan B asserted that it “could not have previously moved for individual arbitration of the claims of the unnamed class members” because the putative class members were not parties to the action prior to the time the court certified the class. In her reply, Sprunk argued that Plan B had waived the right to arbitrate by actively
litigating the case.

April 24, 2015 – The trial court granted class certification in a written order. The court rejected Plan B’s arbitration argument, finding that Plan B’s delay in seeking arbitration—during which it took advantage of “the court’s processes”—meant that Plan B had “waived its right to arbitrate at least as to Plaintiff’s claims.”

August 12, 2015 – Plan B filed two separate motions to compel arbitration directed to the class members who signed the two different versions of the arbitration agreement. In the motions Plan B again argued that it had not waived the right to compel arbitration against the unnamed class members because
they were not parties until a class had been certified.

Decision by Court of Appeal

The appeal centered around whether Plan B’s actions as to Sprunk could determine whether Plan B had waived its right to compel arbitration against the unnamed plaintiffs. Plan B argued the Court should only consider its reasons in delaying compelling arbitration as to the unnamed plaintiffs themselves, claiming that it could not have moved to compel arbitration against these individuals until the class was certified, and therefore its delay in doing so was reasonable.

The Court of Appeal disagreed. The Court ruled it was proper for the trial court to consider Plan B’s actions regarding delaying arbitration as to Sprunk in determining whether Plan B had acted inconsistently with its right to arbitrate against all class members. The Court of Appeal found that substantial evidence supported the trial court’s finding that Plan B had delayed its motions to compel arbitration, both against Sprunk and against the other plaintiffs, not for any legitimate reason, but rather to obtain a strategic advantage: it hoped to give itself another opportunity to win the case by first defeating the class certification in court. 

The Court of Appeal agreed that Plan B’s strategy was inconsistent with a desire to arbitrate, finding that “an attempt to gain a strategic advantage through litigation in court before seeking to compel arbitration is a paradigm of conduct that is inconsistent with the right to arbitrate.” Ultimately, the Court of Appeal affirmed the trial court’s ruling that Plan B had waived its right to compel arbitration against the absent class members due to unreasonable delay.


The decision in Sprunk v. Prisma LLC demonstrates how a defendant may lose its right to compel arbitration if it delays compelling arbitration to obtain a strategic advantage against the class. Defendants should remain cautious in delays such as those in this case, even when there is a legitimate reason, such as waiting for an expected clarification in the law related to the case at hand. 

The experienced employment lawyers at Kingsley & Kingsley will continue to monitor this case among others concerning wage and hour laws and the proper classification of employees. In the meantime, if you have any questions about California’s existing employment laws, don’t hesitate to call us toll free at (888) 500-8469 or contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)




employee misclassification uber

Employee Misclassification – Uber’s Roller Coaster Ride from Florida to California

Earlier this year the ride-sharing company Uber scored a victory in its legal battles of whether Uber drivers should be classified as employees or independent contractors. In this most recent California case of employee misclassification, Uber Technologies Inc. reached a settlement offering its drivers an average of about $1 apiece to dispense with alleged labor-code violations that their lawyer claimed might have been worth billions of dollars.   employee misclassification uber

The ride-hailing company, along with the drivers’ lawyer, asked a state judge in Los Angeles in February to approve a $7.75 million agreement to resolve claims stemming from its refusal to give California drivers the protections and benefits of employees. The accord allows Uber to keep classifying the drivers as independent contractors.

Here’s a brief  rundown of other milestone cases against Uber:

  • A 2015 California court decision determined that Uber drivers were employees entitled to certain benefits.
  • Uber agreed to pay $100 million that appeared to resolve a massive class action case in April 2016
  • Uber faced a rejection of that settlement by a federal court judge in August 2016 as the judge believed the resolution was not adequate.
  • A 9th Circuit ruling in September 2016 handed Uber a significant victory by upholding the company’s previously stated arbitration agreements.
  • In February of this year, a Florida state appellate court ruled that Uber drivers are independent contractors, not employees, and therefore not entitled to unemployment compensation benefits when their working relationship with the ride service terminates.

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U.S. Supreme Court to Decide Appellate Court Split Class Action Waiver

U.S. Supreme Court Grants Certiorari in Three Class Arbitration Waiver Cases class action waiver

On January 13, 2017, the United States Supreme Court consolidated and granted petitions for writ of certiorari in Epic Systems Corp. v. Lewis, Ernst & Young v. Morris and NLRB v. Murphy Oil USA Inc. The nation’s highest court will hear argument on whether arbitration provisions in employment agreements which waive class actions are a violation of the National Labor Relations Act (NLRA). Stated differently, the question is whether employers can utilize arbitration agreements within employment contracts that require their employees to resolve disputes individually instead of collectively via a class action.

The Court’s decision in this case aims to resolve a significant split among federal appellate courts. The Second, Fifth and Eighth circuit courts have held that the Federal Arbitration Act (FAA) requires the enforcement of class action waivers in employment arbitration agreements. The Seventh and the Ninth circuits have reached the opposite conclusion, holding that such waivers are unenforceable.

Seventh Circuit

In Epic Systems Corp. v. Lewis (USSC 16-285), the Seventh Circuit held a provision of an employment agreement mandating that wage-and-hour claims could be brought only through individual arbitration and that employees waived collective action was prohibited under Section 7 of the NLRA. Epic Systems, a Wisconsin-based health-care software company, required certain groups of employees to agree to bring any wage-and-hour claims against the company only through individual arbitration. The agreement did not permit collective arbitration or collective action in any other forum.  Continue reading

employee arbitration alternative dispute resolution

California Court Decides on Employee Obligation to Alternative Dispute Resolution

Agreement of Alternative Dispute Resolution employee arbitration alternative dispute resolution

On December 27, 2016, the California Court of Appeals published a decision on the enforceability of an Alternative Dispute Resolution Agreement (“Agreement”) in an employee-employer relationship. The case in front of the court was Flores v. Nature’s Best Distribution and the issue before the Court was whether or not a former employer could compel arbitration under the Agreement signed by the employee.  Ultimately, the Court declared that the defendants failed to prove the plaintiff agreed to submit her claims to final and binding arbitration.


In July 2001, the Plaintiff in this case, Julie Flores began working for Nature’s Best Distribution in the shipping/receiving department. According to her complaint, Flores injured her back in February/March 2014 but continued to work until May 2014, when her back injury got worse and she was placed on medical leave. The complaint further alleged that plaintiff’s medical leave was extended through August 15, 2014.  When plaintiff returned to the doctor, however, she was not cleared of all restrictions and was placed on further leave until August 31, 2014, on which date she would be cleared to perform modified duties from September 1 to 19, 2014. Plaintiff did not receive a doctor’s note memorializing the need to further extend her leave, until August 18, 2014, at which time she faxed it to her employer at a fax number, which she previously had used, and received a confirmation that the fax was successfully sent. The employer denied receiving a fax. Plaintiff attempted to deliver the doctor’s note in person, but learned that on August 21, 2014, her employment had been terminated for failing to return from medical leave.

In November 2014, Plaintiff filed a lawsuit against Nature’s Best Distribution, LLC, Nature’s Best, KeHe Distributors, Inc., and KeHe Distributors, LLC (collectively referred to as defendants), alleging several claims under the California Fair Employment and Housing Act. Specifically, Flores claimed disability discrimination, failure to engage in the interactive process, failure to accommodate disability, failure to prevent discrimination or retaliation, and wrongful termination in violation of public policy.

Defendants filed a petition to compel arbitration based on evidence that plaintiff signed an agreement for alternative dispute resolution. In opposition to defendant’s petition to compel arbitration, plaintiff argued that: 1) she did not recall signing the Agreement; 2) the Agreement was ambiguous because it did not specify which set of American Arbitration Association (“AAA”) rules applied; and 3) that the Agreement was unconscionable because it was a take-it-or-leave it condition of employment, plaintiff was required to pay unlawful fees, and denied plaintiff’s appeal rights. The trial court denied the petition. 

California Court of Appeals

The defendants in this case contend the trial court erroneously concluded defendants failed to prove plaintiff agreed to arbitrate her claims and that the arbitration provision contained in the Agreement was unenforceable because it is unconscionable. The California Court of Appeals affirmed the trial court’s order and declared that the defendants failed to prove plaintiff agreed to submit her claims to final and binding arbitration.

The Court of Appeals’ analysis started and ended with the following: “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists.”  (Rosenthal v. Great Western Fin. Securities Corp.)  In this case, the Court of Appeals found that no Agreement was reached on multiple levels.  While the Agreement seemingly bore the contested signature of the plaintiff, a signature from a company representative was absent from the Agreement.  This would seemingly be sufficient because the employer never signed the Agreement to which it was a party, but the Court went further in its analysis.  The Court of Appeals went on to find that the agreement was ambiguous because it failed to: 1) specify which disputes would be subject to arbitration; and 2) which of the multiple sets of AAA rules would apply to arbitration.

In affirming the trial court’s order, the Fourth District Court of Appeals found that the Agreement was ambiguous at best and that defendants failed to prove that the parties reached a “final and binding” agreement on arbitration of claims.  The Court of Appeals declined to analyze the issue of unconscionability because there was no agreement to begin with.

California Employment Law

Flores v. Nature’s Best Distribution illustrates the importance of consulting an attorney when developing or revising employee policies and procedures, to include employee agreements and other obligations on the part of employees or employer. If you have any questions about California employment law, contact Kingsley & Kingsley to speak with one of our experienced labor lawyers.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

Ninth Circuit Blesses Iskanian in Sakkab vs. Luxottica

iskanian PAGA | Kingsley & Kingsley | California attorney | Encino, CANinth Circuit’s Decision Is Not the End of Class Waivers in Arbitration Agreements

On September 28, 2105, in Sakkab, et al v. Luxottica Retail North America, Inc., the Ninth Circuit ruled that an employee cannot waive the right to bring a representative action under the Private Attorneys General Act (“PAGA”) through an arbitration agreement or any other means. Through it’s ruling, the Ninth Circuit found the California Supreme Court’s “Iskanian Rule”—which essentially says that pre-dispute agreements to waive PAGA claims are Continue reading