Employee Did Not Ask For A Translation.
Plaintiff Zaragoza filed a wage and hour class action against her employer, and the employer moved, successfully, to compel arbitration. Zaragoza appealed, arguing the arbitration agreement was void and obtained by fraud because she could not read English. Zaragoza v. Sela Healthcare, Inc., E065373 (4/2 9/11/17) (Codrington, Miller, Slough) (unpublished).
Zaragoza's appeal was unsuccessful for two main reasons. First, the law is replete with cases holding that one who has not read a contract, or is unfamiliar with the terms, should have read it, or had it explained to them. An inability to understand English is not enough to avoid this general rule. Second, Zaragoza did not ask for a translation.
COMMENT: I have blogged before [9/13/2016] on the effect of presenting employees with contracts in English, when their first language is Spanish. In Penilla v. Westmont Corporation, 3 Cal.App.5th 205 (2016), the Court concluded, "the arbitration provision was procedurally unconscionable, as it failed to disclose prohibitively expensive arbitration fees and was neither provided in a Spanish-language copy nor explained to respondents who did not understand written English."
While the fact that the agreement is not in the language of the employee is not dispositive, it has been considered as a factor in weighing procedural unconscionability. The better practice for an employer who wants to avoid a claim of procedural unconscionability is to translate the arbitration provision into Spanish for employees whose first language is Spanish, or to explain it to them, as the Court of Appeal suggested in Penilla.
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