It can be very difficult to keep language straight when an employer presents different policies, and different agreements, to the same employees. One recent California appellate opinion highlights this issue.
In Playu Alberto v. Cambrian Homecare, the employer presented a caregiver with multiple agreements during her orientation. These included an arbitration agreement, a confidentiality agreement, and an "addendum" to the confidentiality agreement.
The problem? Inconsistency between the three agreements presented to an employee at one time. While the arbitration agreement applied to “all claims or controversies arising out of Employee’s . . . employment . . . or cessation of employment,” the confidentiality agreement required employees to “consent to the order of an immediate injunction … from any court of competent jurisdiction” – and included other employer-friendly provisions as well.
Noting that the arbitration agreement might have been enforceable on its own, the court nonetheless held that (1) it would be unfair to require arbitration of all an employee’s claims while allowing the employer to bring some important claims in court (in addition to other employer-friendly provisions), and (2) the arbitration and confidentiality agreements should be read together because they were presented at the same time as part of the same new employment relationship.
The result? An employer left facing a full civil PAGA/Class Action rather than a single-plaintiff arbitration.
This was a case of bad facts making bad law. But it provides an important lesson for all employers: policies should be considered together when presented to employees. Failure to consider the relationship between different policies or employee agreements, even those adopted years apart, can have a devastating effect when both are read together.
An aside: Employers should also carefully consider any ‘integration’ clauses stating that a policy is the “entire agreement” with an employee or “supplants any prior agreements.” This type of language, often placed in commission or severance materials, can destroy prior at-will, trade secret protection, or other important agreements with an employee.
The case, Jennifer Playu Alberto v. Cambrian Homecare, can be viewed here.