“Where an employee continues in his or her employment after being given 14 notice of the changed terms or conditions, he or she has accepted those new terms or 15 conditions.”
How later courts described this case
- “Where an employee continues in his or her employment after being given 14 notice of the changed terms or conditions, he or she has accepted those new terms or 15 conditions.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 The California Labor and Workforce No. 2:21-cv-02327-KJM-KJN
Development Agency, et al.,
12 ORDER
B Plaintiffs,
14 v:
15 CompuCom Systems, Inc.,
16 Defendant.
17
18 In this action, plaintiff William Raymond asserts employment claims on his own behalf
19 | and under the California Private Attorneys General Act (PAGA). Defendant CompuCom System,
20 | Inc. (CompuCom) moves to compel arbitration of all of the claims except the claim asserted
21 | under the PAGA. For the reasons set forth below, the court holds the motion to compel
22 | arbitration in abeyance.
23 | I. BACKGROUND
24 CompuCom employed Raymond as a Field Technician in 2010. Compl. ¥ 19, Not.
25 | Removal Ex. A, ECF 1-1. Raymond was hired on an at-will basis. See Arbitration Agreement at
26 | 4, Griffin Decl. Ex. A, ECF No. 7-1. In October 2016, CompuCom adopted a new arbitration
27 | policy. Mot. at 2-3, ECF No. 7. It then sent an arbitration agreement to all of its employees in
28 | the United States by email and mail, published a notice of the agreement in the company’s weekly
1 newsletter, and posted the agreement electronically in its company handbook. Griffin Decl.
2 ¶¶ 4-7, ECF No. 7-1. Raymond notes that throughout his employment CompuCom sent him
3 “important documents for signature[,]” including an acknowledgment that he received a copy of
4 the employee handbook. Raymond Decl. ¶ 9, ECF No. 9-1. Raymond does not recall receiving
5 any emails or letters about the arbitration agreement. Id. ¶¶ 17–20. He estimates he received
6 thirty to fifty emails a year about other company policies. Id. ¶ 12. He believes he read them all,
7 but admits he may have missed one or two. Id.
8 CompuCom’s arbitration agreement covers “all claims or controversies, past, present or
9 future, including without limitation, claims arising out of or related to . . . employment . . . .”
10 Arbitration Agreement at 1. It covers claims for “unfair competition, wages, minimum wage and
11 overtime or other compensation claimed to be owed, meal breaks and rest periods, . . . [and]
12 equitable claims. . . .” Id. It also includes a class and collective action waiver. Id. at 2.
13 Employees can opt out of the agreement by sending CompuCom a signed form. Id. According to
14 the arbitration agreement, it did not require an employee’s “signature to be effective and binding”
15 because “continuation of employment” constituted acceptance. Id. at 4. Raymond continued
16 working several years after CompuCom first sent the arbitration agreement to its employees. See
17 Compl. ¶ 19.
18 Raymond filed this action in state court, asserting several claims on behalf of a proposed
19 class based on Compucom’s alleged failures to pay wages and overtime, issue reimbursements,
20 provide wage statements, and similar matters. See generally Compl. As noted, he also asserts a
21 claim under the PAGA. See id. ¶¶ 29–37. CompuCom removed the case to federal district court,
22 citing this court’s diversity jurisdiction, see generally Not. Removal, ECF No. 1, and now moves
23 to compel arbitration of the claims, apart from the PAGA claim, on an individual basis, Mot. at 1.
24 CompuCom’s motion does not cover the PAGA claim, however CompuCom has indicated it
25 plans to move to compel arbitration of that claim as well. Joint Status Report at 5, ECF No. 18.
26 The current motion is fully briefed and the court submitted on the papers. Opp’n, ECF No. 9;
27 Reply, ECF No. 12; Min. Order, ECF No. 13.
1 II. LEGAL STANDARD
2 “Generally, in deciding whether to compel arbitration, a court must determine two
3 ‘gateway’ issues: (1) whether there is an agreement to arbitrate between the parties; and
4 (2) whether the agreement covers the dispute.” Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th
5 Cir. 2015) (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002)). The party
6 moving to compel arbitration must prove these elements by a preponderance of the evidence. See
7 Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014). If the gateway requirements
8 are satisfied, arbitration is mandatory. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217–18
9 (1985). “A court may invalidate an arbitration agreement based on ‘generally applicable contract
10 defenses’ like fraud or unconscionability, but not on legal rules that ‘apply only to arbitration or
11 that derive their meaning from the fact that an agreement to arbitrate is at issue.’” Kindred
12 Nursing Centers Ltd. P’hip v. Clark, 137 S. Ct. 1421, 1426 (2017) (citation omitted). “When
13 deciding whether the parties agreed to arbitrate a certain matter . . . , courts generally . . . should
14 apply ordinary state-law principles that govern the formation of contracts.” First Options of
15 Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995).
16 III. ANALYSIS
17 Raymond advances two primary arguments in opposition to CompuCom’s motion. He
18 argues the arbitration agreement is invalid because it violates the statute of frauds. Opp’n at 13–
19 14. The statute of frauds requires certain contracts to be signed and in writing, including an
20 “agreement that by its terms” cannot “be performed within a year.” Cal. Civ. Code § 1624(a)(1).
21 This rule “only prohibits enforcement of contracts that cannot under any circumstances per
22 performed within one year.” Hicks v. Macy’s Dep’t Stores, Inc., No. 06-02345, 2006 WL
23 2595941, at *3 (N.D. Cal. Sept. 11, 2006) (citing Foley v. Interactive Data Corp., 47 Cal. 3d 654,
24 671 (1988)). At-will employment contracts do not fall within the statute of frauds because the
25 employment relationship could end within a year. Foley, 47 Cal. 3d at 673. “The statute of
26 frauds likewise does not apply to an arbitration agreement attached to an employment agreement
27 of indefinite duration.” Hicks, 2006 WL 2595941, at *3. As an at will employee with no defined
28 end date to his employment Raymond cannot succeed by citing the statute of frauds.
1 Raymond also argues, however, that he did not agree to arbitrate at all. He claims he did
2 not receive, read or sign any arbitration agreement. Opp’n at 9. Accepting without deciding his
3 position in this respect, Raymond nevertheless may be bound by the arbitration agreement as a
4 result of the combined effect of various California legal presumptions and interpretive rules, as
5 reviewed below.
6 First, under California law, an employer can “unilaterally alter the terms of an
7 employment [contract]”—assuming the change does not violate a statute, such as the Labor Code,
8 or some other contract. Schachter v. Citigroup, Inc., 47 Cal. 4th 610, 619–20 (2009).
9 Second, if an employer changes the terms of employment by adding an arbitration policy
10 and gives notice of that change, and if employees who receive notice then continue their
11 employment, then they have “impliedly consented to the arbitration agreement.” Diaz v. Sohnen
12 Enterprises, 34 Cal. App. 5th 126, 130 (2019); accord Davis v. Nordstrom, Inc., 755 F.3d 1089,
13 1093 (9th Cir. 2014) (“Where an employee continues in his or her employment after being given
14 notice of the changed terms or conditions, he or she has accepted those new terms or
15 conditions.”). An employee consents even if he does not sign the arbitration agreement or
16 otherwise affirmatively consent to the change. See Davis, 755 F.3d at 1093.
17 Third, “a letter correctly addressed and properly mailed is presumed to have been received
18 in the ordinary course of mail.” Craig v. Brown & Root, Inc., 84 Cal. App. 4th 416, 421 (2000);
19 Cal. Evid. Code § 641 (providing statutory basis for this principle). A person cannot defeat this
20 presumption by simply asserting he “does not recall” receiving the mailed letter. Chavez v. Bank
21 of Am., No. 10-653, 2011 WL 4712204, at *8 (N.D. Cal. Oct. 7, 2011); Murphy v. DIRECTV,
22 Inc., No. 2:07-6465, 2011 WL 3319574, at *2 (C.D. Cal. Aug. 2, 2011), aff’d on a separate
23 question, 724 F.3d 1218 (9th Cir. 2013). Nor is an uncorroborated denial ordinarily sufficient.
24 See Schikore v. BankAmerica Supplemental Ret. Plan, 269 F.3d 956, 963 (9th Cir. 2001). Rather,
25 some other evidence is normally necessary to overcome the presumption. See, e.g., Chavez, 2011
26 WL 4712204, at *9 (evidence of an incorrect address on file). This rule is designed to avoid
27 “swearing contests” about whether a letter was mailed and received. Id.
1 Together, the application of these rules could show Raymond is bound by the arbitration
2 agreement. CompuCom changed its policy, which it was allowed to do unilaterally. It says it
3 gave notice of the change by mail. While Raymond does not recall receiving any letters about the
4 change, he offers no evidence to bolster his position, other than his inability to recall receiving
5 notice. Raymond Decl. ¶¶ 18–19. Raymond continued working for the company after the change
6 in arbitration policy. Under California law, Raymond’s signature was not required for an
7 agreement to arbitrate to have been formed; nor was he required to read the agreement before it
8 could take effect.
9 CompuCom, however, has not offered the evidence that would be necessary to set a
10 presumption of Raymond’s receipt of notice and the other legal rules in motion. To rely on the
11 presumption that Raymond received the mailed notice of the company’s new policy, CompuCom
12 must show the policy was properly mailed and addressed. Craig, 84 Cal. App. 4th at 421. It has
13 not. It has offered the declaration of its current human resources and compliance manager, who
14 reports the company engaged a third party to mail the arbitration agreement to all of its
15 employees. Griffin Decl. ¶¶ 5, 8. The company has offered no documentary evidence, however,
16 from this third party or otherwise: no declaration, no records, no mailing list, no postmarked
17 envelope or proof of service, no confirmation that Raymond’s copy was not returned as
18 “undeliverable.” CompuCom notes that some letters were in fact returned, see id. ¶¶ 8–9, but this
19 observation alone is insufficient to raise the presumption as to Raymond. Nor does the record
20 confirm that any letters were actually mailed. CompuCom offers only a copy of an email from an
21 unnamed employee of a third-party entity that it allegedly arranged to mail the agreements.
22 Griffin Decl. Ex. B at 6. This person, whose name and email address are redacted,1 wrote a one-
23 line response dated October 14, 2016 to CompuCom’s request for confirmation that all the letters
24 to employees regarding the arbitration agreement were mailed: “Planning to deliver to post office
1 The unilateral redaction does not comply this court’s local rules on redaction, see
generally L.R. 140, but also does not appear to conceal information material to resolving this
motion. Counsel is cautioned in the future to strictly comply with the local rules on sealing and
redaction, and all applicable law, which articulate a strong presumption in favor of the public
filing of all information related to a case on the court’s docket.
1 today.” Id. Nothing supports the conclusion that CompuCom’s current human resources director
2 has any independent first-hand knowledge about the mailing of employee notices. She appears to
3 have relied solely on the company’s records and her general “familiarity” with the company’s
4 “business operations and employment practices.” Id. ¶ 1. The court cannot conclude on this
5 record that CompuCom or a third party acting on its behalf mailed a copy of the arbitration
6 agreement to Raymond at his then-current address so as to benefit from the presumption that
7 Raymond received the mailing.
8 CompuCom also claims it gave notice to Raymond and others by email, in the company’s
9 newsletter, and on the company’s internal website. See Griffin Decl. ¶¶ 4, 6, 7, 9. It cites no
10 California law to support this claim; nor does it point to any recognized presumption analogous to
11 the mailing presumption applicable to notice by email, electronic newsletter and website. If
12 Raymond actually received and opened an email, read a newsletter or visited the company
13 website, even if he cannot remember doing so, he might be held to the arbitration agreement. But
14 on this record, the court cannot draw that conclusion as a matter of law. Too much is uncertain
15 and unproven about the content and circumstances of CompuCom’s electronic and other
16 communications. What was the content of the various communiques and how prominent was the
17 language putting employees on notice? Did Raymond have the opportunity to check and read the
18 emails or review the website and handbook? What evidence can CompuCom produce that shows
19 the emailed notices, website postings or handbook contents were effective in providing Raymond
20 an opportunity to know about the arbitration agreement and understand its terms? These kind of
21 factual disputes must be resolved before the court can adjudicate the motion to compel arbitration.
22 “[O]nce a district court concludes that there are genuine disputes of material fact as to whether
23 the parties formed an arbitration agreement, the court must proceed without delay to a trial on
24 arbitrability and hold any motion to compel arbitration in abeyance until the factual issues have
25 been resolved.” See Hansen v. LMB Mortg. Servs., Inc., 1 Fed.4th 667, 672 (9th Cir. 2021).
26 IV. CONCLUSION
27 The court holds the motion to compel arbitration in abeyance until the disputed facts
28 above can be resolved through a trial or equivalent evidentiary proceeding. The parties shall file
1 a joint status report within 21 days providing proposed dates for trial and clarifying whether they
2 believe trial should be by jury or a bench proceeding. The report shall include trial plans for both
3 parties, identifying witnesses, exhibits, and time necessary to resolve the issue of assent.
4 IT IS SO ORDERED.
5 DATED: July 26, 2022.
6