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Jury Trial and Class and Collective Action Waivers in an Employment Contract

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  • 12-30-2016, 01:28 PM
    mlatelcom
    Jury Trial and Class and Collective Action Waivers in an Employment Contract
    My question involves labor and employment law for the state of: Arizona

    Hello all,

    I recently got a new job and received a new hire package with documents that need to be signed. All of them are understandable; but there are two one in particular that I do not understand.

    both of them say basically the same thing but change a few. Can someone explain me what they mean? Below are the documents:

    Quote:

    Quoting Acknowledgement of Mutual Jury Trial Waiver
    [Company], lnc., its officers, directors, employees, representatives, funding sources, affiliates, contractors, and/or other agents (“[Company]”) hope that your experience working with us is rewarding and fun. We believe that employees who work in a positive environment provide better services to our clients and their families, project greater enthusiasm for our mission, and help build a more successful organization. [Company] also believes that our internal grievance resolution procedures are able to address problems that may arise between you and [Company]. However, we recognize that despite everyone’s best efforts, sometimes a matter cannot be resolved internally. In those rare circumstances, judges considering individualized claims are often in the best position to fairly resolve these disputes.

    By signing below, you are agreeing to a binding jury trial waiver that may be enforced by you or Southwest Key. This agreement does not take away your right to sue or prevent you from filing a charge with a federal, state, or local administrative agency. Rather, you are waiving your right to request or demand a jury trial and agreeing that any claim you have against [Company] that cannot be resolved internally will be resolved by a judge.

    Please be advised that a claim includes any dispute, controversy, lawsuit, or cause of action you may have against [Company] related to your employment or separation of employment. Please also be advised that by entering into this agreement, [Company] is also waiving its right to request or demand a jury trial with respect to any claim between you and [Company].

    Please note that this agreement does not alter the at-will employment relationship and shall not be construed as a definite term of employment or a contract for employment. Further, if any provision(s) of this agreement is/are found to be invalid, void, or unenforceable, then the remaining provisions shall continue to be valid. This document shall be governed by and construed under the substantive and procedural laws of the State of Texas without regard to principles of conflict of laws. Any lawsuit arising out of or relating to this agreement shall be held in Travis County, Texas.

    By signing this document you agree and understand that: (1) you have read this document, have been offered or may request a copy of this document, have been given an opportunity to ask questions about this document or consult any person(s) of your choosing about this document; (2) by continuing to work for [Company] and accepting this offer, you understand that any lawsuit between you and [Company] will be decided by ajudge rather than a jury; and (3) you have signed this document knowingly, intelligently, voluntarily, free from duress or coercion, and after being given time to give it due consideration.

    Quote:

    Quoting Acknowledgement of Mutual Class and Collective Action Waiver
    [Company], Inc. its officers, directors, employees, representatives, funding sources, affiliates, contractors, and/or other agents (“[Company]”) hope that your experience working with us is rewarding and fun. We believe that employees who work in a positive environment provide better services to our clients and their families, project greater enthusiasm for our mission, and help build a more successful organization. [Company] also believes that our internal grievance resolution procedures are able to address problems that may arise between you and [Company]. However, we recognize that despite everyone's best efforts, sometimes a matter cannot be resolved internally. In those rare circumstances, considering claims on an individualized basis is often the best manner to fairly resolve these disputes.

    By signing below, you are agreeing to a class and collective action waiver that may be enforced by you or [Company]. This agreement does not take away your right to sue or prevent you from filing a charge with a federal, state, or local administrative agency. Rather, you are agreeing that any proceedings to resolve or litigate any claim will be conducted solely on an individual basis, and not as a class action or otherwise pursuant to class, collective action, or comparable procedures.

    Please be advised that a claim includes any dispute, controversy, lawsuit, or cause of action you may have against [Company] related to your employment or separation of employment, Please also be advised that by entering into this agreement, [Company] is also waiving its right to a class or collective action with respect to any claim between you and [Company].

    Please note that this agreement does not alter the at—will employment relationship and shall not be construed as a definite term of employment or a contract for employment. Further, if any provision(s) of this agreement is/are found to be invalid, void, or unenforceable, then the remaining provisions shall continue to be valid. This document shall be governed by and construed under the substantive and procedural laws of the State of Texas without regard to principles of conflict of laws. Any lawsuit arising out of or relating to this agreement shall be held in Travis County, Texas.

    By signing this document you agree and understand that: (1) you have read this document, have been offered or may request a copy of this document, have been given an opportunity to ask questions about this document or consult with an attorney about this document; (2) by continuing to work for [Company] and accepting this offer, you understand that any lawsuit between you and [Company] will will be decided on an individual basis and not as part of a class or collective action; and (3) you have signed this document knowingly, intelligently, voluntarily, free from duress or coercion, and after being given time to give it due consideration.

  • 12-30-2016, 01:39 PM
    Taxing Matters
    Re: Jury Trial Waiver - Class and Collective Action Waiver
    Quite simply they mean that in a controversy between you and the company in court the case will be decided by a judge rather than a jury and that your claim would have to be brought alone and not as part of any class action or group claim. This latter provision effectively forecloses the ability of a class of employees litigating a common claim against the employer in a class action; each employee would have to bring his or her claim separately. I have no idea whether Texas courts would invalidate either of these provisions as I have not researched Texas case law on the matter. That’s something to ask an employment law attorney in Texas.
  • 12-30-2016, 01:50 PM
    mlatelcom
    Re: Jury Trial Waiver - Class and Collective Action Waiver
    Thank you for your prompt reply!That part of jury trial is the scariest. What are the advantages or disadvantages for me as an employee?
  • 12-30-2016, 01:56 PM
    PayrolGuy
    Re: Jury Trial Waiver - Class and Collective Action Waiver
    Here is a good article on the Jury Waiver issue. https://www.shrm.org/hr-today/news/h...0212legal.aspx

    While it doesn't speak to Arizona law specifically many employment issues would be under Federal jurisdiction anyway.

    And here is one on the Class and Collective Action Waiver https://www.fisherphillips.com/resou...s-waiver-fight

    The NLRB is very much against them but the courts are mixed.
  • 12-30-2016, 03:16 PM
    Taxing Matters
    Re: Jury Trial Waiver - Class and Collective Action Waiver
    Quote:

    Quoting PayrolGuy
    View Post

    While it doesn't speak to Arizona law specifically many employment issues would be under Federal jurisdiction anyway.

    The agreements that the OP posted specifically state that Texas law will apply and that any lawsuits between the parties would be litigated in Texas. Thus, it is likely that Texas law, not Arizona law, would apply here. While federal law does have some employment law provisions, most employment and contract law is state law, so state law matters very much here.
  • 01-03-2017, 07:28 AM
    PayrolGuy
    Re: Jury Trial Waiver - Class and Collective Action Waiver
    As the OP is in Arizona and working in Arizona it is more likely the laws of that state and federal law will be in play.
  • 01-03-2017, 07:35 AM
    llworking
    Re: Jury Trial Waiver - Class and Collective Action Waiver
    Quote:

    Quoting PayrolGuy
    View Post
    As the OP is in Arizona and working in Arizona it is more likely the laws of that state and federal law will be in play.

    Not if the OP signs a contract that says that TX law will apply.
  • 01-03-2017, 08:32 AM
    PayrolGuy
    Re: Jury Trial Waiver - Class and Collective Action Waiver
    Most labor law can't be overruled by a contract unless it gives MORE right to the employee.
  • 01-03-2017, 09:17 AM
    llworking
    Re: Jury Trial Waiver - Class and Collective Action Waiver
    Quote:

    Quoting PayrolGuy
    View Post
    Most labor law can't be overruled by a contract unless it gives MORE right to the employee.

    Jurisdiction is not a labor law issue in this instance. No labor law is breached by someone agreeing to a specific jurisdiction.
  • 01-03-2017, 09:32 AM
    Taxing Matters
    Re: Jury Trial Waiver - Class and Collective Action Waiver
    Quote:

    Quoting PayrolGuy
    View Post
    Most labor law can't be overruled by a contract unless it gives MORE right to the employee.

    While there are some provisions of labor law that cannot be overruled by a contract, there are some that may be. The Arizona Supreme Court has upheld an employment contract where the parties chose Texas law to govern the contract. See Swanson v. Image Bank. Without doing a full choice of law analysis and analyzing the exact nature of the dispute between the parties, it is impossible to say which state’s law would govern, but for many disputes the choice of law provision in the contract would indeed be valid and Texas law would apply.
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