You might worry that people who don’t speak English well won’t be bound by contracts such as arbitration agreements. If applicants or employees can’t read an agreement, it would seem logical that they couldn’t agree to the terms.
You have little to fear. In fact, you don’t have to translate the documents into different languages. As long as the applicant or employee has an opportunity to review the materials—perhaps taking a copy to a friend or translator—and you don’t misrepresent anything in the agreement, chances are a court will uphold the contract as valid and binding.
Recent case: Juan Morales, who primarily speaks Spanish, accepted a job with Sun Contractors as a welder. He signed an employment agreement that included an arbitration agreement. Before beginning work, he underwent a two-and-a-half-hour orientation in English, during which the agreement was explained. Morales didn’t ask for a copy, nor did he have any part of the agreement translated.
Later, Sun Contractors fired Morales for throwing a bottle of urine at another contractor’s employees. Morales then tried to sue. Sun Contractors asked the court to send the case to arbitration.
The 3rd Circuit Court of Appeals agreed and wrote, “In the absence of fraud, the fact that an offeree cannot read, write, speak, or understand the English language is immaterial” if he signs that agreement. (Morales v. Sun Contractors, No. 07-3806, 3rd Cir., 2008)
Final note: Always consult an attorney before presenting an arbitration agreement to applicants or employees. And think twice before including it as part of your handbook. Because you want the agreement to be a binding contract, you must separate it from other employment-related matters covered in the employee handbook—many of which you don’t want to be binding.
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