Has the Viking River Ship Really Sailed?

[Brandon McKelvey] (0:00 - 2:18)
Good morning, everybody. Thank you for being here today, seeing some familiar names and faces, and happy to have everybody here today. I think most of you know me, but I'll go ahead and introduce myself, and then I'm going to also introduce my partner, Chantelle Egan.

So I'm Brandon McKelvey. I'm one of the founding partners of Medina McKelvey. I work in the Wage and Hour Practice Group, and I also am one of the co-founders of California Compliance Solutions, which is a company designed to help train employees and managers on wage and hour issues.

I'm very excited to introduce most of you for the first time to Chantelle, who came to us actually from a very prestigious international law firm, and she's got over 10 years of experience working with employers, mostly Fortune 100 and 500 companies, and this is a firm. We're really excited for you folks to get to know her. If you don't know her already, some of you have probably met her and have had the pleasure of getting to ask her a few questions and things like that.

But for those of you who haven't met her, we really do encourage you to reach out, say hi, and make kind of a compliance issue or anything like that. She's the person to contact. Like I said, she leads up our Advice and Counsel Practice Group, and as our Advice and Counsel Practice Group leader, she's great with the entire life cycle of employment.

So that's everything from onboarding questions to anti-harassment to training to terminations and so on and so forth, compliance, you name it. So with that in mind, we've got a number of things to cover today. I'll just say one thing, and then I'm going to turn it over to Chantelle, which is this is a rare webinar where we actually get to share some good news in this environment, in the wage and hour context of California employment law.

So we're excited to actually share some things with you. We're going to cover a little bit of the basics about arbitration first, and then we're going to jump into this new Mariana versus Viking River decision and talk about that. And then from there, we're going to give you some tips and tools for how this can impact your business and what you can do to protect yourself in California.

So with that in mind, Chantelle, I'll turn it over to you.

[Chantelle Egan] (2:18 - 16:55)
Thanks. Well, thanks for that very kind and flattering introduction. I'm streaming live from foggy San Francisco.

I'm so happy to be here, not just on this webinar today, but also just a part of Medina McKelvey. And as Brandon said, it's always exciting to be able to deliver some good news. And our focus today is also to talk about not only this case, but how you then can turn around and implement it in your business.

And with that in mind, we really want to encourage you to ask questions. There's going to be time at the end for you to ask questions. But if things pop up during the webinar, feel free to use the chat system in order to ask your question in real time.

We are monitoring it. If we don't answer it right away, simply because we're going to cover it in a later slide. So let's go on to the next slide.

We're just going to talk a little bit about what is arbitration? I mean, so here we are today, we're going to be talking about this new case, Viking River. And everybody on the defense side that represents employers is really excited.

And Brandon's going to unpack that for you about why, because it does give us a way to say that arbitration agreements can be used as a bit of a defense against these pocket actions here in California. But, you know, we throw around this word arbitration, but let's just like pause for a minute and make sure we all understand what arbitration is. Arbitration is not a get out of jail free card, and you never have to litigate anything.

That's not what arbitration is. Arbitration is really just a different forum to resolve disputes. And there's some pros and cons to that, we're going to talk about that.

But instead of going to court, it is a private adjudication in front of a neutral arbitrator. A neutral arbitrator tends to be retired judges, but instead of the courtroom with the jury and all the pomp and circumstance that goes with the courtroom, and also sometimes how long things take, this is a dispute that is resolved in a conference room. And with that in mind, it's a much more relaxed procedure.

There's not as many briefings and things like that that are typically necessary. There's also not as many rules. Frequently, when we get to the hearing stage, in terms of evidentiary objections and questioning witnesses, neutral arbitrators tend to be more kind of flexible and helping us present evidence.

As a general matter, they are quicker. But as like a side note, what's interesting is that what we've seen with COVID, that we've actually seen a lot more cases that typically the plaintiffs bar would have fought going to arbitration, they actually were willing to go to arbitration because the courts were so long, were closed for so long, and really even now are dealing with a backup of log of cases. So in general, they do tend to be quicker.

But I will say it's been in the arbitrations I've been scheduling lately, they tend to be scheduled a little bit farther out than we've been seeing in the past. That said, you know, they usually end up start to finish about a year, whereas a lawsuit can drag on depending on which jurisdiction you're in between, you know, sometimes between two and three years. The other thing about an arbitration is that it's, it's a binding award, there's no appeal.

So how it works in a court system is, you know, let's say that everything you either resolve it on summary judgment. So that means that you resolve the case on the papers, and you never have to go to trial, or you do go to trial, then very frequently thereafter, there's this opportunity for you to appeal the decision or appeal that something went haywire during the court procedures, those because in the courtroom, the procedures are very important and very regimented. And that opportunity is not here.

The arbitrator will issue an award, and then it becomes enforceable. So the process is that really also goes to why the process is is so much quicker here. So arbitration agreements, they're everywhere, we see them all the time.

Every time you know, it's, you know, we always joke, it's like, how often do you're like, Oh, yeah, that's like scrolling that really long agreement. And I'm just click it, because I want to get to what whatever the next thing is, whichever, you know, I want to download this thing on my phone, I want to use this app, I want to buy a cell phone, I'm in the doctor's office, and they won't see me until I sign an agreement that I'm going to have, you know, everything via arbitration. arbitrations exist all the time in our in our life.

But there's really kind of two different types of arbitrations that are, and I want you to kind of think through this, because the ones that we deal with in our everyday life don't necessarily match what we see in the employment context. So in the employment world, we have to, as an employer, I'm sure you've already faced this that like, it's, we need to make sure that the employee has a, I guess the right word to say is that like, they have an element of choice in in the arbitration agreements. In years prior having mandatory arbitration agreements in an employment law was permissible, you said, I'm sorry, you don't sign arbitration agreement, you can't work here.

The law has much more gray in that regard right now. So if you want an enforceable arbitration agreement, it needs to be voluntary at this point, based on where we currently stand with the law. And I think this is probably a good time to mention that the law here is, is really in flux.

So the things that we're talking about today may be true today, but not tomorrow. And so, you know, this is certainly something to keep an eye on, because both at the state level, and at the federal level, they're really looking at how arbitration agreements are used as an employment, in the employment context, and there may be changes in the pipeline. Now, so for example, you know, you don't sign that arbitration agreement at your doctor's office, you just don't see that doctor.

Here, an employee can say, no, you know, I just don't want to sign it, I'd prefer not to. Additionally, in an employment context, you need a lot of disclosures. And, and that kind of doves into like the required terms, you really need to spell out the entire process, telling them what it is that they can expect, how if they wanted to look at the rules of the arbitration, where it is that they could find them to review those rules, what are going to be the expectations in terms of the employer covering costs, how is an award going to be issued, you know, is it going to be in writing, is it, and all these various rules, that so that they can make an educated decision about whether or not they want to sign this arbitration agreement.

Frankly, the long and the short of it is that there's a lot more bells and whistles. It's also something that, you know, unlike that very kind of, you know, as I was mentioning earlier, you just kind of scroll through the agreement and move on with your life. With an employment agreement, we really want it to stand out, be all by itself, be a solo document, because as you can see here on the screen, that last comment about employment agreements is that they are much, much harder to enforce.

So, you know, in the consumer context, you know, the fact that you click that button, I mean, you're pretty much bound for the most part. I mean, I'm oversimplifying it, but in the employment context, they're much harder to enforce. They are frequently litigated in the context of, you know, employment disputes, quite a few of them.

I mean, I would say, other than during COVID, I had never had, not once in all my almost 15 years of experience, ever had someone start a litigation in arbitration, except for one time, which was during COVID. What they do is they go to court first, and then they make you go to court to enforce the arbitration agreement. So not only is there a process there, but then you have to prove up that your agreement has all those bells and whistles that we were talking about.

So let's go through the pros and cons, because there really are a lot. And, you know, we're going to be, you know, hooping and hollering about this Viking River case and how it impacts your ability to defend POG actions. And there's a lot to celebrate there.

And, you know, as Brandon keyed into, it's very rare that we get to give good news. So let's take a moment to appreciate that. But there, you know, there is some, there is pros and cons, and you're going to have to make decisions about what makes the most sense for your business.

So let's kind of just go through kind of these as like, I'm going to kind of walk through them kind of going back and forth between the two, because in many ways they're related. So a huge plus is they're much more predictable. And really where have they become more predictable is a couple of things.

One being you don't have the element of a judge or a jury. I will tell you serving on a jury in San Francisco was probably one of the greatest like legal education classes I ever took. Really seeing how the sausages made in the deliberation room was so such an eyeopening experience for me as a lawyer.

It is who you select to be on that jury really can impact your case. Likewise, the judge that gets assigned to you, same thing. How are they going to decide the brief?

What is their, you know, philosophy on discovery? There's a lot of variables. There's also a lot of like regional differences when we see things with judges and juries.

Like for example, a judge and jury in LA is going to be very different than, you know, a judge and jury in Placer County. So with a arbitration, you know, you have a lot more kind of control and, you know, understanding about where things are going to go in terms of variability. However, that dovetails really nicely into the arbitrator compromise.

What we mean by that is that an arbitrator is unlike a judge that is trying to clean up their docket and trying to get rid of cases and decide them on the paper so that they don't have, you know, this backlog of trials to have. An arbitrator is there for the long haul. And so in that case, what we find is a couple of things.

One, we find that as a general matter, arbitrators are less likely to decide a case being arbitrated on summary judgment. You know, they're getting paid by the hour. So there's an interest for them to take this to hearing.

Likewise, there's an interest for arbitrators because they need to satisfy both the plaintiff's bar and the defense bar. And so we often see arbitrators kind of split the baby, if you will. You know, we say, okay, well, they find some way to side with the plaintiff and some way to side with the defense.

And because of that, you're less likely to get like a slam dunk win with an arbitrator without going to hearing first. You know, an arbitration can be quicker, as I mentioned earlier, but quicker kind of goes both ways, meaning that that also means that you have to move quicker. So you can't say like, oh, let's try to drag our feet here.

That tends to not be a litigation strategy when you're in arbitration. But there's also more relaxed rules. And that helps you in, you know, both ways.

One is that, you know, you don't have to spend quite as much time doing all the briefing and formal procedures, which frankly, can really add up your costs. But at the same time, because rules are, you know, more relaxed, it's also easier for the plaintiff's bar, because they don't have to have those kind of rules either. So they can just say, hey, let's pick up the phone and talk to the arbitrator.

And I'm going to, you know, gripe about all these various discovery things, because they don't have to go through the process of the motion. But I would say that the other thing too, about when it goes to quicker and the relaxed rules is the issue of discovery. So in a lawsuit, discovery can be incredibly robust.

And you can spend a lot of time and energy focusing on written discovery, taking depositions. In arbitration, those tend to be truncated. Usually there's less depositions, less written discovery.

But if that isn't something that's kind of spelled out in the beginning with your arbitration agreement, that's certainly something that you'd want to negotiate on the front end with the arbitrator to kind of set some parameters. The idea with an arbitration is that we can streamline to a solution quicker. So with that in mind, that's why discovery tends to be truncated.

But there still is discovery. Now, arbitration, everyone thinks of arbitration as like, oh, well, it's going to be less expensive, because I'm not going to have as high legal bills, because my defense counsel is not going to be having all these various motions and things like that that we're filing. Remember that in the employment context, the employer bears the burden of the costs of the arbitration.

And really, there's like a small carve out with how much it would cost for the employee to file a suit in to, in essence, instigate a lawsuit, which I think is just a couple hundred dollars. But after that, all the expenses, all the, you know, the time that the arbitrator is going to bill gets, you know, that's the responsibility of the employer. So that can really add up quickly, especially if there are multiple arbitrations filed at the same time, which may be a strategy for some plaintiff's counsel.

Brandon, you want to discuss that?

[Brandon McKelvey] (16:56 - 18:19)
Yeah, I mean, I think we're going to cover this more when we get to kind of what's the outcome of the Viking River decision. But what we've seen as a strategy that's been used kind of as a minority strategy by the plaintiff's lawyers is that they will file multiple individual arbitrations in order to gain leverage against the defendant. And it only takes 5, 10, 15, in some cases, and some, and we've seen cases where there've been hundreds of individual arbitrations filed, where, you know, you may actually be asking for a class action or a POG action at that point.

And one of the reasons for that is every single arbitration itself is individually expensive. So if there's 10 or 15 or 20, and you just do the math, it can get very, very costly, very quick, including if you have in your arbitration agreements, which we do not recommend, typically, that you go with a kind of standard arbitration provider like JAMS or AAA, they now require something like a $25,000 deposit just to start the arbitration. So not a big deal when it's one person against you, you know, one employee against you, and it's one arbitration, $25,000.

But if it's 10, that's 250. If it's 100, it's 2.5 million to get arbitration started. So that's a strategy that we think is going to come into play more as we see the fallout of Viking It's, you know, it's a death by, you know, a kajillion paper cuts.

[Chantelle Egan] (18:19 - 20:46)
And that certainly could be a strategy that that folks use. And it also could be a strategy where multiple plaintiffs counsel adopt that same strategy, and you won't have the same arguments that you have in court, that all those should be streamlined. And there should be one counsel.

Rather, you're dealing with them, as Brandon says, as individual arbitration agreements. Something else that's quite reflected on this chart, but it's certainly worth mentioning is, there's also some limitations on arbitration agreements, meaning the types of cases that can be arbitrated. It's not universal.

And actually, fairly recently, back in March, Biden signed into law, a federal, a new federal law that said that any sexual harassment claim that is brought under federal law can, cannot be mandated to go to arbitration. Rather, if an employee has entered into an arbitration agreement, that employee who is filing a claim against their employer for sexual harassment, or anything sexual assault related, at their discretion can decide whether to continue on in the arbitration realm as dictated by the agreement, or they can take the matter into court. It's solely in the employee's hands.

And I would not be surprised if we see an expansion of those types of rules here on the local level, at the state level, having it be more expansive. So just know that that's something that's down the pipeline if you, and we could also have, for example, you know, plaintiff's counsel could make some decisions about whether or not they want to pursue federal claims based on that new law. And last but not least, there's the issue of it's, it's binding and it's final.

And I see that as frankly, as a general matter, a pro. It's, it's over, it's done with, it is what it is, we can all move on with our lives. Because frankly, the appeal process can be, go on for a very, very long time.

Now, on the flip side, if you're the one who wants to appeal, then you're completely out of luck. And you won't know that at the outset. So it's really a compromise that you're making on the at the front end, knowing that, hey, if it doesn't go my way, I've got to live with it.

[Brandon McKelvey] (20:50 - 37:57)
All right, so I'm going to spend some time talking to you folks a little bit about the fight leading up to Viking River. I don't think it's hard to understand the importance and the impact of Viking River without understanding kind of where we've been and what the law has been in the past. I'm going to try to do this very quickly and try to give you a very high level overview in the process.

But the one of the key points is that there has been a battle between federal and state law in the area of employment arbitration agreements for the last 20 years. It's really and it's been playing out in literally hundreds of cases at the state level, legislation at the state level, and then a lot of cases at the federal level, including the Supreme Court. That battle is really over who gets to decide what should be in an arbitration agreement and when an arbitration agreement in the employment context should be enforceable.

And there's an important federal act called the Federal Arbitration Act, which everyone refers to as the FAA, which basically says, and I'm summarizing, but this is what it says, along with the authority interpreting it, says arbitration is a good thing. We should encourage parties to stay out of court if they want to. They have freedom of contract.

If they want to resolve their disputes in what is a quicker, more efficient forum, we should allow them to do that. And we shouldn't restrict that in any way. Kind of the counter to that is California in particular, and there are other states as well, they want to do everything they can to limit employment arbitration.

They think employment arbitration is a bad thing. They think because it's private, it's not public, because it forces the employee often to be alone against the employer, because the arbitrators aren't judges, they believe it's a bad thing. So at least the California legislature, along with many, many California courts, have really tried at every opportunity to limit arbitration.

And that's created this battle between the federal and state. And that's played out most recently over the last five years in the area of class action waivers. So employment arbitration agreements, we know we can have them.

We know that's the law, that the FAA allows us to have employment arbitration agreements. But what about, can you force an employee in an arbitration agreement to just arbitrate their claims individually? In other words, can you, as part of your arbitration agreement, have what's called a class action waiver, which would say, which says, I'm agreeing to arbitrate my claims with you, employer, individually.

And I'm agreeing as part of this arbitration agreement, not to bring any kind of group, class, or collective action against you. And actually, that issue was heavily litigated for years in California. And California courts basically said, class action waivers are prohibited.

They're against California public policy. That eventually ran into a crash course with the FAA, the federal law, and it went up to the United States Supreme Court. Some of you will remember this decision.

We've reported on it. I think we had webinars back then about it. It was in 2018.

It was the Epic Systems decision. And that decision was the United States Supreme Court saying, California, your law that prohibits class action waivers actually violates federal law. The FAA preempts, means trumps, the California law in this area.

Class action waivers can be part of an employment arbitration agreement. That was a huge victory for employers, particularly in California. And as a result of that, the scales really finally tipped in favor of a lot of employers going in the direction of arbitration.

Because arbitration, as Chantelle explained, there's a lot of pros and cons to it when you're just talking about an individual arbitration. And there's a lot of different ways to look at it. And so a lot of employers are like, yeah, I don't necessarily think it has enough benefits.

But when you add in California, the benefit of not being able to kind of keep yourself out of a class action, the scales just totally tip in favor of arbitration. And so as a result, since 2018, since the Epic Systems decision, a lot of companies have been moving in the direction of arbitration. But there was one kind of open question still that wasn't addressed in the Epic Systems decision, at least not directly, which is what about a PAGA waiver?

If we can do a class waiver, can't we also have the employee sign an agreement that also waives PAGA claims and prevents those from being litigated as a group? Meaning you could have a PAGA claim, but it'd be an individual claim, you against the company, versus I'm going to represent, as we often see in PAGA, I'm going to represent all the other employees. Now, if you remember, just a little quick refresher on PAGA for those who might not be familiar, most of you are, but just a little quick refresher.

The thing about PAGA is that it's like a class action, it's different from a class action. A class action has a bunch of procedural rules that the plaintiff is required to go through, hoops that they have to jump through in order to get a court to agree that this case should be a group action, where the employee represents a whole bunch of other employees who work at the company. PAGA, however, is a different animal altogether.

And through a series of decisions over the course of the last 10 years, the California Supreme Court has continually kind of narrowed the scope of PAGA and explained just how different it is from class actions. It's a representative action, not a class action. You'll hear us using that term a lot.

A representative action, what does that mean? It means that the employee can represent, the employee who brings the PAGA action can represent all the other employees for these claims that are alleged in the PAGA action without having to fulfill any of the requirements that would be required in a class action to represent other employees. So they basically get their cake and eat it, too.

They get to represent everybody, but they don't have any procedural hoops to jump through, which makes PAGA actions very easy to be manipulated by plaintiffs and lawyers. Now, remember, too, a PAGA action, what it is, is it's a state enforcement action. So some of you will remember the history on this, but just really quickly, because I think it kind of gives you a finer point on what's going on in California law, because PAGA is actually something that other states are now trying to enact for this reason, is California back in early 2000 said we can't possibly have a bunch of Department of Labor offices all throughout the state.

There's thousands of employers in the state that were geographically dispersed all over. We got to find a different way to try to enforce California's employment law. So what we're going to do is we're going to deputize.

We're going to give every employee a badge, is the way I like to describe it. We're going to deputize and give every employee a badge, and we're going to give their lawyer, when they hire a lawyer, a badge as well, and they'll become private attorney generals. That's private attorney general access, what PAGA is.

They become private attorney generals, and they get to prosecute employers for violations of the California Labor Code and obtain penalties, 75% of which go to the state, 25% go to the employees. So that's what PAGA is, and so everybody, the question remaining after EPIC systems is how can an arbitration agreement keep PAGA out of arbitration, and can you have an employee agree to just one-on-one arbitration and basically give up their PAGA claim and not be able to pursue that as a representative action in court? So that was the question leading up to the Viking River.

So Viking River, you know, everybody's using the shortened version of the case, Viking River, like what does that mean? Well Viking, this is a case, it's Viking River, it's Reiki River Cruises, Moriana. What this is was, this was, Moriana was an employee at Viking, at Viking River Cruise Lines, one of the, you know, cruise ships in California, and when she started her employment, she signed an employment arbitration agreement, and in that agreement, Viking River had the language that she was going to agree to, as part of the arbitration, arbitrate individually with Viking River if there were any disputes, and if there were any disputes, she was also agreeing that she would not bring those on behalf of a class, a collective, or a representative PAGA action, and that was the key.

She had that language in her agreement that said she was not going to represent other people. As a result of that, that case went through the California court system, and you can imagine what happened there. The California court said PAGA representative waiver?

No, those don't work here, like those, that's not consistent with the law, and in fact, there was a California Supreme Court decision that's been on the books for about 10 years now, the Iskanian decision, some of you may know that name, but the Iskanian decision, which said PAGA action is a unique government enforcement action, and it's not subject to arbitration, and so, you know, a lot of defense lawyers like us disputed that, like how can that be, that's not consistent with the federal arbitration act, so this case worked its way through the California court system, and each turn in the California court system, the California court said, nope, they cited the Iskanian case, said you can't have a PAGA action waiver, it's different from a class action waiver, we know EPIC system said you can have a class action waiver, but this is different, that eventually made its way to the Supreme Court, and it's interesting to note that in making its way to the Supreme Court, that in and of itself was quite a feat, because this particular issue, which is whether a PAGA action can be excluded from arbitration, whether a PAGA waiver is valid in an arbitration agreement, that issue had continually been thrown up to the Supreme Court on writs, like with people saying, hey, please decide this, this seems to violate the FAA, and it's not consistent with it, please decide this, and many, many times, the United States Supreme Court had said, we're not going to address that, but finally in November of last year, November 2021, the United States Supreme Court took that issue up in the Viking River cruise case, and they finally decided it once and for all, and so we're going to go through and talk about what the key holdings are in that case, and what is the really outcome in the meeting for you as employers. So there's really five things to know about the case, and I'm going to cover each of these really quickly.

So first and foremost, the Supreme Court, just like it did in EPIC system, said we're going to enforce a PAGA action waiver in an employment agreement, and the reason for that is because the FAA, the Federal Arbitration Act, does not allow you to limit arbitration, and in addition, there's no provision in the FAA, there's no law that suggests that you can bring anybody you want into arbitration with you, and that's what PAGA does currently as it's written, is it says you can bring, you get to represent everybody, and that's, it's basically a joiner, a forced joiner, which is like I'm going to represent everybody, I'm going to represent the state, and I'm going to represent all these other employees, and the United States Supreme Court said nope, you can't do that, you can't force an employee, an employer, to arbitrate the claims of other individual employees in the context of arbitration. So in doing that, what they did is they overruled California law, they overruled the Iskanian case, so the Iskanian case which said PAGA waivers are not valid, PAGA, you know, you can't, you can't actually have a PAGA action in arbitration, it has to be litigated in court, that is not, no longer the law of the land, the, obviously the United States Supreme Court trumps the California Supreme Court in areas of federal law, and so what does this mean? This is number three, it kills many, but not all, existing PAGA cases effectively, and let me explain that a little bit, because I think that's important.

So if there's a current, if there's a current, like maybe one of you, for example, have a current active litigated suit, and four years ago, because that's how long, you know, these cases go back, four years, it doesn't even have to be four years, it could be a year, it's PAGA, so let's say a year, more than a year ago, going back in time, you had all your employees sign an arbitration agreement, and in that arbitration agreement, you had that same magic language that Viking River had in their arbitration agreement, which by the way, not a lot of employers had, Viking River was kind of skirting the edge, and like pushing the limits, but if you had that language, and it said class actions, collective actions, and representative actions are not allowed in arbitration, now if you have that case in court, that means the PAGA case cannot proceed in court, because the employee is forced to go into arbitration, and the employee, once forced to go to arbitration, cannot proceed on a representative basis, can't represent other employees in arbitration, so the employee still gets to arbitrate their claims, it's not like the claim goes away completely, but the advantage to employers right now is that case becomes much smaller, because now it's just you against one employee, versus you against your entire employee population, so that's going, that really, that's going to, for anybody who had that language in their arbitration agreements, which again is probably a minority of employers at this point, that was, that's going to kill a lot of these cases. The one big downside, and this is like the only bit of bad news that we're going to give you today, but it is, it's kind of the silver lining for the plaintiff's lawyers, not us, which is that in that decision, the justices for the United States Supreme Court created essentially a roadmap for how California could do a workaround to this law.

I'm not going to go into all the details of the California, of the United States Supreme Court, and kind of what their makeup is, I mean it was a very interesting collection of justices who signed on to this opinion, so we suspect that a lot of horse trading was done to get a consensus on this, on this decision, and one of the things that was part of that consensus was like, okay, we'll agree to you, we'll agree to a decision that says the FAA preempts a blanket PAGA waiver, but that's only because PAGA doesn't allow claims to exist in arbitration and in court essentially, and so there's this roadmap that's in there that's pretty clear, like I mean when we first, when all of us as employment lawyers first read the decision, we said this is great, but it's very clear what California could do here potentially to get around this ruling, so we expect that that's coming and we're going to talk a little bit about that as we move forward, but there is a roadmap for a workaround and then what it's going to mean is a lot more fights in the future, but the fifth thing and the final thing that I want to share with you is that what it does currently, like what does it do for us now, is it substantially limits PAGA cases in the near future, it's going to take time for these issues to kind of work their way through the courts, for maybe a California law to get passed and then for that to work its way through the courts, but for now the United States Supreme Court has ruled this is the law of the land, so if you have an arbitration agreement with that magic language or if you don't have one now, but you after this webinar for example, call Chantelle and get one, then you are going to be able to keep yourself out of a class action in court and out of a PAGA action and you'll be able to force employees who try to sue you into an individual arbitration where they won't be able to represent anybody else, which is a huge advantage currently in California and we'll take it as long as it lasts. So let's talk about what the impact is, so those are the five key takeaways, what is the impact on class and PAGA cases moving forward? The first is that it scared the crap out of the plaintiff's lawyer, plaintiff's lawyers, I'll just be honest, like the case really, they've been on this gravy train for years, PAGA was not only a statute but all the case law that had come out around from the California Supreme Court almost gave them like prosecutorial immunity, like they could do whatever they wanted, like if they could bring these cases in droves, there was like no way to, there's not a lot of good ways to defend them in a lot of cases and so this case kind of has reigned the plaintiff's lawyers in, they're freaking out, they're going to their conferences trying to figure out what to do next and it really did create this uncertainty in the legal field over the last six months where all of a sudden, PAGA cases that we saw before that were cases that might settle for a certain amount are now settling at a discount.

So it created, and this is number two, it created temporary outs, what I would say outs and discounts in existing PAGA cases. Some of you folks who are our clients who are on the phone may have been involved in one of those cases where you had a case and it looked like one and then Viking River came out and oh this is pretty good, we can we can utilize this and we're going to talk about how you can utilize it. Yeah go ahead.

[Chantelle Egan] (37:57 - 39:06)
Let's do one other thing too, I think that there's also this kind of unique moment in time right now in terms of getting a discount if you have an active PAGA case or if there's things where you're thinking that oh you know we have some practices that are you know not PAGA proof and we're in this kind of unique time right now because remember what Brandon said earlier, everything just kind of stopped in November when the Supreme Court took this case up.

So we can't lose sight of the fact that you know the the paint bar that brings these cases, this is also a business. So many of these cases haven't been resolved and they've been kind of like sitting there waiting for months and months and months and because of that if your business model is to file a lot of PAGA cases and settle them, there could be folks that are like look we need to get these things off our books and find another way in order to you know find another lucrative way to you know litigate against employers.

So it really is this like really unique moment in time not just based on the law but also based on the the business pressures that may have built up for for those that litigate this case on the litigate these cases on behalf of employees.

[Brandon McKelvey] (39:07 - 41:44)
That's right and that's what we're exactly what we're seeing. We're seeing that play out every day, we're seeing discounts, we're seeing cases that go away. There's some plaintiff's lawyers who once Viking River came out and we had you know we have agreements that we were like okay this is you know this arguably is good for you know consistent with Viking River but there's some arguments here and we we you know call up the plaintiff's lawyers and they say yeah we think we're we're done here and so let's just settle on a kind of a nuisance value individual settlement instead of some big paga settlement. That's not every plaintiff's lawyer, that's not every case, but there have been a few of those.

But the key the thing to keep in mind though and this is why as Chantelle says it's a limited window of time, the workarounds are already in the works. I mean I've talked to plaintiff's lawyers who are you know active with the legislature and the lobbying and things like that and they're saying there's already legislation that was waiting for Viking River to come out and that as soon as it came out it was going to be tweaked so that they would try to somehow get around it. There's also in addition there's a bunch of cases that have been up on appeal in the California court system that had been waiting for Viking River and now they're going to be interpreting Viking River in relation to California law.

Now they're not going to be able to get around the key holding but they might be able to provide some escape routes and things like that. So we see what we see coming is number four which is legal battles like there's going to be more legal battles in the future. I also think and Chantelle mentioned this earlier you know that's why enforcement your arbitration agreement is so important because now the plaintiff's lawyer is forced with maybe no option in some of these cases other than an individual lawsuit they're going to have to really attack the arbitration agreement.

They're going to come at it from all different angles trying to find a way to prove that the agreement wasn't voluntary, that the agreement didn't have full disclosure in it you know so on and so forth so that they can somehow get a judge and there's a lot of kind of anti-arbitration judges in California get a judge to not enforce the agreement so that they can proceed in court. So I think we're going to see a lot more battles in the over the fight over whether the arbitration agreement is enforceable which is why the rollout is important which Chantelle is going to talk about in just a minute. So number five and this is the key we want all of our clients and employers to take advantage of this while they can and what does that mean?

We're going to talk about what that means in more detail but generally what it means is if you don't have an arbitration agreement yet you should have one and if you have an arbitration agreement currently but you're not sure whether or not it has the magic language in it that Viking River had we need to make sure that it's updated and the third thing is we want to make sure that you're following a process that's going to give you the best chance to enforce these agreements and so with that I will turn it over to Chantelle to talk about that for a little bit.

[Chantelle Egan] (41:45 - 45:20)
So well and first let's just talk about what the agreement needs to look like in order for it to be compliant so the Viking River case was very instructive so you need these elements. It needs to be voluntary and not mandatory and that's and we're going to talk about this a little bit more in detail but that doesn't just mean you write on the document that it's voluntary there's really other evidence that's going to come into play for employers to show that this was truly an a voluntary process frankly you're going to want some employees to reject the arbitration agreement that's great evidence that it is voluntary. It also needs to be a standalone agreement you know a lot of times we feel like something's a standalone agreement because you're like look I have an onboarding process I'm pushing out a bunch of documents but it's they're all standalone really I mean they are but because they have big headings but I'm just going to do one big omnibus document so the employee can click themselves you know click through DocuSign.

It's really not going to fly in an arbitration agreement it really needs to be its own document that lives alone all by itself and is not put in with you know other documents whether that's a you know an offer a letter or a acknowledgement of a handbook it a confidentiality agreement it really needs to stand alone. It also needs to very expressly have a class action collective and representative action waiver and notice that there's these three things are listed here and part of that is you may think to yourself you know I got a class action waiver well technically speaking PUAGA is not a class action and so you really want to have all the different actions that someone can bring on behalf of others so and you want to have them all listed in your arbitration agreement.

You also want to have some very key terms and the most important one probably is severability and what that means is is that just in case you have something in your arbitration agreement that's not quite perfect that's not a deal breaker you can get rid of it you can sever it you can chop it off it doesn't matter the judge then has discretion to be like nope I'm just gonna you know cross this one off. Same thing too with it that the agreement can be modified in order to be compliant so if there is something that's you know erroneous in it that the judge can go ahead and modify it to be like okay well it's minutely off I can modify it in order to be in compliance with the law.

That doesn't mean that you can be like oh well I don't need all these bells and whistles because I have this like modification severability you know backstop no it means that if there's things that beyond the required terms those we can get rid of those and modify them to get you in compliance but you really still need the essential core terms. And then last but not least is a proper rollout process and I'm going to go into that a little bit more detail in the next slide but that you really can't just you know hand over your hand over an arbitration agreement there really is something that you really want to just track it through the entire process both so that you can defend it from a voluntary standpoint and two so that you can track it and use it in litigation. Brandon do you want to talk about the next slide with the litigation disclosures?

[Brandon McKelvey] (45:20 - 46:31)
Yeah let me just say a quick thing about litigation disclosures and I'll let you land the plane here with kind of some of the compliance issues. So on litigation so if you're actively in litigation so if there's already a lawsuit and you have an R and you're rolling out a new arbitration agreement meaning maybe you have an existing one or maybe you don't have one at all but you as part of your litigation strategy you're rolling out an arbitration agreement which you can do that's actually a legal thing that you can do currently in California law which is in the midst of a class or private case you can roll out an arbitration agreement and essentially everybody who signs that agreement kind of gets taken off the board from a PAGA and a class action perspective.

So that's often something that we have our clients do but when you do that it's really important to have a litigation disclosure because again we think these things are going to be attacked heavily in court especially in this current environment even more so and so you have to be able to go to your client to your employees and say hey we're rolling on a new arbitration agreement it's voluntary you can sign it or not sign it but you should know there's this case out there and if you sign this you're not going to be able to participate in this case. Again that's only if you have active litigation but we highly recommend litigation disclosure because it's going to help you protect yourself in court.

[Chantelle Egan] (46:33 - 52:51)
So let's talk about compliance so you know this is like my sweet spot where I'm like oh this is this is exciting this is like how it actually works in real life and hopefully this is something that for you too like great this was really wonderful information but you know how can I use it that's what we're going to talk about here so your very first step should be to ask yourself do I have an arbitration agreement? If you do you really want to analyze that existing arbitration agreement to make sure it has all the necessary bells and whistles required by Viking River.

So like I said earlier if you rolled it out and it's the one I see the most frequently is that it's not a standalone agreement it's you know the back side of the confidentiality agreement for some reason those two seem to be linked together. If like that's a you know step number one it's it's now not gonna you know pass the Viking River mustard so you want to do that analysis to figure out okay is this compliant. Now you either are going to create a whole new arbitration agreement or you're going to update the one that you have and then you need to roll it out and so really the next like couple of points here I should just I feel like the mantra of of my of my practice is like process process process like these are all good things but if we don't have a process in order to roll things out in order to track them then you know it may not help us in the long run. Even if you have the most perfect arbitration agreement if your rollout is an ironclad and if you're not doing accurate record keeping it's like well it doesn't matter. So for the rollout what's really important about that if you're if you're making the decision you know we need to roll this out you need to think about who it can get rolled out to and how it's going to be rolled out to them and especially being it's kind of like in the middle of their employment and where the reason needs to be careful is really that voluntary piece is that you're saying okay you know here everybody sign this do this today before you leave that's not voluntary. You really need to think through the messaging that accompanies the rollout and to show that it's voluntary and as I said earlier having people decide that they're not going to sign is actually really a good fact.

It may seem like oh geez we have these 10 holdouts that makes me so happy because that's actually really great evidence down the road when we need to enforce these arbitration agreements that they truly are voluntary and we have people that have rejected them and they still continue to work for us. Likewise you know we also need to think about the rollout in terms of this forms of kind of like this overall messaging and I'm going to talk about this in a little bit but this is also a key time if you're thinking about making other changes. I was just joking with a client about this like no employee even if you're giving them the best news ever likes change and so if you're changing all the time like oh by the way can you sign this agreement today oh and tomorrow I'm going to give you a new handbook and then like oh by the way we're changing our record keeping practices so if I could teach you this new way to do your time entry and there's going to be this attestation and then next week is something else oh you are going to have a riot on your hands and so this is really also a good time for you to think what else do I need to roll out and how can I present this as a comprehensive adjustment to how it is that we're going to conduct work in the workplace and I'll talk a little bit more about that in a bit. This is also when you start to say okay let's talk about onboarding.

If you are adopting a arbitration agreement or if you're updating it having it be a part of your onboarding process making sure it's once again standalone but also I cannot tell you how many times a client has been like oh yeah we got our new updated arbitration agreement we rolled it out but we forgot to change our onboarding packet and the onboarding packet was the old version of the arbitration agreement so you really have to think about all the ways that this arbitration agreement could touch an employee and go to those processes and make sure the proper document is there and then it's also good record keeping because I also we've had that situation where it's like oh don't worry we got an arbitration agreement no problem oh no the one that's we can't find it it's not in their personnel file oh well there's one in their personnel file but it's not signed like that doesn't make any sense this is really what I'm talking about like the soups to nuts process and it could be if you're revisiting these issues now it could mean that it's time for an audit to just kind of you know double check are we doing all the things that we're supposed to be doing but on an ongoing basis really having it be you know for example going to that onboarding checklist like what is our process once we get a document where does it live how can I find it how can I you know on an you know on an annual basis double check that arbitrations are compliant and that really is helpful for number five and if someone declines to sign an arbitration agreement you absolutely can ask them to sign it again you can't ask them to sign it the next day that's going to make it look like it's not voluntary but if you keep a running list of the folks that aren't signing arbitration agreements you know once a year something that's reasonable you can roll it out to them again to give them another opportunity to sign it that's absolutely permissible however what you want to be thinking about from a compliance perspective is you don't want to roll it out to somebody who signed an arbitration agreement that you like and that is compliant because that person can now say you know what I'm deciding I don't want to sign this agreement and then you have a really messy situation on your hands arguing whether or not their later rejection of an arbitration agreement somehow negates their earlier signing of one so it's really about like I said process record keeping and making sure that your processes are supporting the documents that you've created.

[Brandon McKelvey] (52:52 - 53:56)
Hey Chantelle we've got a question actually I think it's a good good opportunity right in the midst of process question is are electronic signatures good enough and the answer to that is yes as long as you follow there's an electronic signature kind of protocol that you need to follow I have the elements in front of me but as long as you're following a good standard best practice for electronic signatures something like DocuSign will hold up in court if you're doing your own kind of internal electronic so just where we've seen clients have trouble is that like tracking of the signature doesn't you know you actually can't connect the employee with the signature and there's like no good like screenshots of it so when you get to court and you're trying to say like they did sign it like this you know there's an electronic record you need to have like some IT guy who's really boring come in and say this is how this works so you really want to have you know DocuSign will give you this and other other signing platforms you really want to have something that's going to look good in court that shows like this is this employee this is their signature and this is when they signed it so you can use that and that'll also work out work if you have an opt-out as well

[Chantelle Egan] (53:56 - 57:09)
yeah it really is having an e-signature and something that's a controlled environment that only the employee has control over DocuSign other similar services kind of meet that standard however what we see very frequently is you know someone will just be given a word document and they type their name in they're like well I didn't type it in unless somebody else must have done it and frankly if there's that kind of ambiguity you're gonna have a really hard time enforcing the arbitration so that's a great question so as I mentioned earlier you know compliance is a much larger animal than just one arbitration agreement and so this is really an opportunity to take advantage of this moment in time if you're thinking about updating your arbitration agreement if you need an arbitration agreement that what are the other issues that you want to address that need that are employee facing that you want to address to so that you don't have multiple changes happening over time but rather it's an you know an omnibus change plus you know this is a you know an unscientific statement but if you're giving somebody you know multiple things to review I would suspect that they're more likely to sign the arbitration agreement than if you just give it to them in isolation and one of the ways that we can help with that is through our wage and hour compliance plan and really it's just a tool in order to help your business identify what are the issues that needed to be addressed and what is the scale as we assess these issues what are the things that are red hot we need to address right now this because you know it's a liability disaster versus like you know what this is this is not perfectly compliant but on our risks of how we're going to prioritize this we're going to put it lower because the likelihood of somebody going after you in a lawsuit on this issue is lower so we're going to really help you identify what are the big ticket items what are the things that you need to assess right away correct right away and then really kind of create a an action plan for you but in descending order I mean and I will be the first to tell you as someone that does this for a living it can be completely overwhelming because once you start you know peeling back the curtain you're like there's a million things that we need to fix because here in California the work bar the bar is 100 perfect compliance that's how the law is written and so it that can be very overwhelming so how our plan is strategized is to help you identify the issues prioritize the issues and also I would say it's like a so it's kind of really a kind of secondary issue is to help us track issues that maybe are outside wage and hour but that come up through the process so that we can help you find solutions and then once we're all done how we handle it is we have a compliant certificate so you know like all right I have handled these issues and at this moment in time based on the current law I can feel confident that these systems are completely compliant

[Brandon McKelvey] (57:12 - 58:31)
that's great I'm going to leave you with one thing and then we're going to open it to questions we answered at least one question on the Q\&A you can type something in if you want or if you want to just you know come on screen and shout out your question that's fine too we'll stay as long as we need to but I wanted to leave you with this which is like again it's great that we get to deliver this this news which is good news which is a rarity but remember like Chantelle said it's not a get out of jail free card so like the worst thing that we could do as advisors to employers is to tell them hey this is great news and you don't have to worry about you know POG actions anymore it's it's not that good of news it's any anything that's going to make it more difficult for people to bring a POG action or to bring a class action to aggregate employees into a lawsuit is great news and it's it's great that we have finally something like finally that the scales are tipping a little bit in favor of the employer but these cases are not going away the plaintiff's lawyers are going to just stick around there they may file individual suits now they may file individual arbitrations they may file they may attack your arbitration agreement they're going to stick around and they're going to keep trying to come after you so it's still a hostile environment in California even with this and so it's important to make sure that you're not just you know you know forgetting about compliance because it's going to matter even though it's going to be a

[Chantelle Egan] (58:31 - 59:12)
different landscape and and I would add to the what compliance really means and this is why the the plan is so important is that you keep asking yourself I know we were in compliance before but are we in compliance now because one thing is for certain that the landscape of legal compliance in California it's just ever changing and so just because you were like well we were good to go a couple years ago things may have changed so it's really good good housekeeping if you will to have this be a part of your compliance strategy is to make sure that you know you're double checking on a regular basis to make sure that things are compliant got another question that just came in

[Brandon McKelvey] (59:12 - 1:00:23)
which is uh we have never had a good one we have never had an arbitration agreement how can we implement it to our new to it now to our current employees it's a really good question and that's kind of the rollout process that that Chantelle was talking about that's one of the things that often employers who don't have an existing agreement they're kind of going to be nervous about that right they're gonna be like oh I don't know like are we going to ask the if we tell them to you know or ask them to sign this is anybody going to sign it it's all about the rollout process and we've done this with hundreds of clients over many years in many different environments and you got and we have a really good system that we can help you uh that we can help you with that really makes this a nice great conversation between you and the employee it's easy it's simple to get full disclosure and what I will tell you and this will take the hopefully the anxiety out of it for a lot of you folks we've never had one that's gone like terrible right we've had some where you know 70 or 80 percent of the employees signed it maybe 20 percent didn't for some reason that's a really rare situation most of the time it's about a 90 to 95 uh signage rate um in terms of the arbitration agreements if you roll it out right so it's all it's all about like Chantelle said it's all about

[Chantelle Egan] (1:00:23 - 1:00:41)
the process and this is also like an opportunity for you to emphasize your culture what you stand about what you stand for all of that can be roped into this process so it actually can end up being a pretty affirming process instead of something that you need to be worried about but like I said

[Brandon McKelvey] (1:00:41 - 1:02:04)
and like Brandon said it's all in the how yep the next question which is related is do you have a available for arbitration agreements to include an onboarding package that would be easily understood by employees it's a really good question we're actually trying to develop something like that right now we have we have tools for you um that we can help you with that we don't have anything kind of like in in a package but in light of Viking River with a lot of new arbitration agreements being rolled out uh that's something we're looking to do we're actually looking to create like kind of a training module for employees it says hey this is what an agreement is and this is why we want to do it and this is uh why you have the option to choose whether you not want to or not and here's some of the key terms and here's where you sign you know like just something really easy for employees that employees can understand that simplifies it I think for most employees unless you have a really kind of angry workforce that is like you know naturally litigious and like suspicious most employees when you give them the pitch of like hey this is why we want to do this it's not we're not trying to trick you out of anything we're just like we're really if there's a dispute between us we will pay for an arbitrator to help decide that dispute it's going to be quicker it's going to be easier for both of us and it's just going to between between us too instead of bringing other people in most employers are not like going to be like oh I don't want to do that that's not terrible like most employees will actually say that kind of makes sense and especially employees that have a good relationship with you um they'll they're

[Chantelle Egan] (1:02:04 - 1:02:40)
not going to be scared off by that and and once again this is also one of those things where if you're doing other training concurrently so for example you're realizing you know your employees are missing their lunches and you really need to address that you can do these things in tandem even though they are seemingly unrelated but have it be focused on hey we're trying to help you the employee we want to make sure that you're getting your breaks we want to make sure that you if you have a dispute with us that we can resolve it quickly these are our goals absolutely I'm not

[Brandon McKelvey] (1:02:40 - 1:04:04)
seeing any other questions come in at the moment um everybody um oh wait there is one uh do you suggest that this agreement be uh like re-signed annually and the answer to that is no you don't have to do that once it's signed it's it's valid for the entire for the entire life cycle of the employment employment however I will say this and this is one of the things we talked about earlier like if you have a really old agreement it probably because there's so much change in this law every year including now Viking River the old agreement probably is not going to to be enforceable uh well it will have enforcement problems or have terms that you want that that you need that you don't have so this is what I generally recommend and maybe Chantelle you you might have maybe a similar or maybe different approach but I say you know you in a California law environment you need to reevaluate your arbitration agreement every year not so that you roll it out again and have to do a whole new rollout again but just to make sure that it's it's good and identify any issues because like this year clearly with Viking River we got some stuff to do but here's the thing even if you decide I'm not gonna like let's say there's some changes you want to make because the law has changed a little bit you don't have to roll that out to all your existing employees as long as your your existing agreement's solid but you probably should just change the onboarding package to have the newer agreement in the onboarding package so that new employees are signing the best version of that so that that carries the the legacy of a better agreement

[Chantelle Egan] (1:04:04 - 1:04:42)
moving forward I think a key thing here is that the rollout agreement or how you roll it out rather is not a one-size-fits-all approach it really depends on where you are right now currently with your arbitration agreement and then we can figure out next steps from there and hands down as I mentioned earlier if you have a compliant arbitration agreement I certainly would recommend that you avoid having someone try to re-sign it because then there could be an issue because it is voluntary that they decide not to sign that second version that you put in front of them and then there could be a dispute as to whether or not the first arbitration agreement is still binding

[Brandon McKelvey] (1:04:43 - 1:06:42)
yep absolutely so one of the things this relates to one of the questions that came in but also just good good information so one of the challenges we had actually when this case came out is like how are we like how are we going to make sure our clients have the best arbitration agreement I mean I'm honestly we want to protect them but we've got a lot of clients and they've got a lot of different arbitration agreements with a lot of different modifications over the years rollout processes things like that like how are we going to harness this and so that's one of the reasons we're doing this webinar is so that we can get in touch with you kind of help you understand the issues and then give you an opportunity to have your arbitration agreement reviewed so here's what I would say is two things like number one if you have an existing arbitration agreement that hasn't been reviewed in like the last six months that needs to be reviewed now and we can help you do that so that's as simple as reaching out to Chantelle or or me and saying hey here's the the version that we're currently using we might have helped you with the version a long time ago but we don't necessarily have that available to us and know that that's the version that you're using now because you these are word documents you can change them so sending us the the current version that you have and saying hey can you just check it out this is not a big legal billing event it's it's it takes a very minimal amount of time to kind of look at it we have a form we have a template with all the magic even viking river language in it we just make sure that your agreement is consistent with that if you have a really old agreement we'll probably tell you like you probably just use the template instead of you know trying to re revise this really old agreement that has stuff that's that's missing from the last five years and legal developments so that's that's the first thing like if you have an existing agreement just send it to us we'll review it the second thing is and this is some of the questions coming in which is what if we don't have an agreement at all like where do we start what i what i would suggest in that situation is that you get on the phone with Chantelle you talk about who your employees are how many you have what your workforce is like how you typically roll out other things and then we will help you build a rollout plan to roll out a new arbitration agreement Chantelle did you have anything else

[Chantelle Egan] (1:06:43 - 1:06:56)
no i think that you covered all the bases and the key thing here is that this is you know this this is the beginning of the conversation so if you have any questions or as you kind of percolate about this be like oh what about this just reach out we're happy to help we're always

[Brandon McKelvey] (1:06:56 - 1:07:37)
here for you yeah absolutely all right thanks everybody um this we're going to conclude the webinar but again we'll stay on just if there are any like anybody wants to pop on for questions i see somebody raising their hand so we're going to try to answer that question but um thanks again for for joining all right so somebody raised their hand the question is how to okay i think i've been able to answer your answer your raised hand what's your question

[Chantelle Egan] (1:07:39 - 1:10:31)
hi Brandon and Chantelle so we've never had an arbitration agreement how can we implement it now to our current employees without like raising any kind of i guess questions or it was never part of our onboarding packet so you know i think the key thing here and like you know we should probably talk offline later on about your specific situation like broad strokes the key thing here is actually thinking about what are you worried that your employees are going to ask about and really focusing on those issues to one we can either kind of dissuade you and say like you know i actually don't think that's something to be worried about um or two we can kind of bake that into the front of the of the of the rollout so it's like if you're worried that you're that your you know employee population is really suspicious of being taken out of court then part of the rollout process will be really detailing why we're taking you out of court the reason for this is you know it tends to be quicker blah blah blah that's focused on you not these larger issues with you know the whole company and we want to really resolve your problem as soon as possible let's just imagine that that's their that's their concern but i think it's worth thinking through that on the front end so that we can really understand why it is that we're rolling this out and then secondarily you never had one before if there's other changes that you're thinking about making or if you're like hey maybe there are some other changes we haven't thought about it this would probably be a good time to do it because you're doing it kind of concurrently and you can communicate like hey we are we've re-evaluated how it is that we do x y and z and you're going to see some changes the changes here are all focused on making sure that let's say you realized like i said earlier you have like a meal break issue like they're focused on making sure that you have the breaks that you need and that you have time for your health and safety to take a break and that you're paid for all the time that you work and we also have these this new agreement so that if there is any issues whether it's about the breaks that you're getting or anything else that we can resolve them quickly through arbitration we just kind of push it all out at once that tends to be just from like how human beings react to change the best way to do it yeah we're revamping a few things so rolling that out would probably be the best like you said concurrently yeah i mean we're happy to work through like timing and uh making sure that it's you know comprehensively handled happy to

[Brandon McKelvey] (1:10:31 - 1:11:31)
help yeah i was just going to add that it's very customized typically for for our clients so like we have some clients who are in the like more in the virtual space and like they're using docuSign all the time and they're they're going to get an arbitration agreement via docuSign just like they get their annual performance review or whatever and so they're very familiar and comfortable with that kind of rollout process so it's not raising any flags or suspicions we have other clients who are very like personal like it's all about like all communication is done in a meeting you know like an in-person meeting and so you know we've had clients who will hold a meeting with a lot of their employees and they'll say hey take out your phone like you see how many apps you have on there you realize that you've signed an arbitration agreement for every app that you've ever opened on your iphone this is that's what an arbitration agreement is they're all over the place but in the employment context they're a little bit different so let's talk about that and let's talk about why we want to do it here and so there's just there's a lot of different ways that you can come about it depending on who your workforce is how you typically communicate with them and what their level of you know kind of knowledge or knowledge base is

[Chantelle Egan] (1:11:31 - 1:11:47)
with respect to this issue okay i guess that's a good example arbitration agreement on the apps that's a good one thanks well i appreciate it thank you guys thank you all we appreciate

[Brandon McKelvey] (1:11:47 - 1:11:52)
everybody in attendance and let us know if you have any questions thanks again awesome thank you