In Esparza v. Sand & Sea, Inc. (CA2/4 B268420 8/22/16), an employer tried to have its cake and eat it, too, with respect to an arbitration agreement. It included the arbitration provision in an employee handbook, which also made clear that nothing in the handbook was intended to create a binding agreement between the employee and the employer.The court found that this rendered the handbook insufficient to establish an agreement to arbitrate.
"The question in this case is whether an arbitration provision in an employee handbook is legally enforceable. The employee handbook containing the arbitration provision included a welcome letter as the first page, which stated, “[T]his handbook is not intended to be a contract (express or implied), nor is it intended to otherwise create any legally enforceable obligations on the part of the Company or its employees.” The employee signed a form acknowledging she had received the handbook, which mentioned the arbitration provision as one of the “policies, practices, and procedures” of the company. The acknowledgement form did not state that the employee agreed to the arbitration provision, and expressly recognized that the employee had not read the handbook at the time she signed the form. Under these circumstances, we find that the arbitration provision in the employee handbook did not create an enforceable agreement to arbitrate. We therefore affirm the trial court’s denial of the employer’s petition to compel arbitration."