The Court of Appeal found that substantial evidence supported the trial court’s finding that the employer had delayed its motions to compel arbitration, both against the named plaintiff and against the other plaintiffs, not for any legitimate reason, but rather to obtain a strategic advantage: it hoped to give itself another opportunity to win the case by first defeating the class certification in court. The court ruled it was proper for the trial court to consider the employer’s strategic decision to withdraw its first motion to compel in determining whether the employer had acted inconsistently with its right to arbitrate against all class members. The Court of Appeal agreed with the trial judge. The employer argued the court should only consider its reasons in delaying compelling arbitration as to the unnamed plaintiffs themselves, because it could not have moved to compel arbitration against these individuals until the class was certified, and therefore its delay in doing so was reasonable.

The appeal centered around whether the employer’s actions as to the individual named plaintiff could determine whether the employer had waived its right to compel arbitration against the unnamed plaintiffs, i.e. The trial judge denied the employer’s motion, finding that it had waived its right to compel arbitration based upon its delay in seeking arbitration of the employee’s individual claims and that the delay was both unreasonable and prejudicial. The court granted the employee’s motion for class certification, and soon thereafter the employer made a new motion to compel arbitration against all of the class members who had signed arbitration agreements. The parties then proceeded to litigate the case for nearly three years. Fearing that the trial court would order the parties to arbitrate on a class basis, the employer withdrew its motion to compel. The employer in that case filed a motion to compel arbitration against the individual named plaintiff. In a detailed decision from the Second Appellate District Court of Appeal, the court found that an employer had waived the right to compel arbitration. 5th 785 (2017), the court confirmed that an employer’s right to compel arbitration against its employees is not absolute.

Employment arbitration agreement