Passed in 1925, the Federal Arbitration Act (“FAA”) intended to curtail the expenses and delay of judicial proceedings. For over 50 years, the FAA applied only in federal courts. However, beginning with Southland Corp. v. Keating (1984) 465 U.S. 1 [the FAA preempts state law and applies in state cases], and rapidly metastasizing during the ensuing 20 years, Supreme Court law has vastly expanded the concept of arbitration. These expansions are often neither quicker, nor cheaper, than litigation, and are frequently biased towards repeat-player large employers, especially those with repeat-arbitrator relationships. (See, e.g., Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105 [the FAA applies to all employment contracts] and AT&T v. Concepcion (2011) 131 S. Ct. 1740, 1753 [the FAA preempts California law refusing to enforce an arbitration agreement containing a class-action waiver, because “States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons”].)
This article discusses how to preserve your client’s right to her day in court, and how to oppose her employer’s attempts to stack the arbitral deck in its own favor. First, it will discuss whether the client actually entered into a binding arbitration agreement (i.e., lack of contract formation). Second, it will walk through both the procedural and substantive sides of the unconscionability defense to enforcement of an agreement, in whole or part. Finally, it will discuss the circumstances under which a court may – and should − void an arbitration agreement entirely, rather than merely severing its unconscionable provision[s].
Agreements to arbitrate are treated the same as other agreements
The FAA requires that California courts treat contracts to arbitrate the same as other contracts. Recently, for those who doubted, our Supreme Court has expressly reiterated that “unconscionability remains a valid defense to a petition to compel arbitration.” (Sonic-Calabasas A v. Moreno (2013) 57 Cal.4th 1109, 1142.) While courts cannot, in applying California’s unconscionability doctrine, “mandate procedural rules that are inconsistent with fundamental attributes of arbitration,” California courts may still refuse to enforce an arbitration agreement if it finds that the totality of the agreement is unconscionable.
Unconscionability applies to all California contracts, not merely arbitration contracts. (Civ. Code, § 1670.5.) In fact, it has been used to invalidate contracts in a variety of non-arbitration contexts. (See e.g., Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 83-86 [interest rate invalidated as unconscionable]; A&M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 493 [disclaimer of warranties and exclusion of consequential damages invalidated as unconscionable].)
In determining whether a person entered into an enforceable agreement to arbitrate her claims, the court will construe the agreement according to settled rules of contract interpretation. The court will only order arbitration if it first determines that an agreement to arbitrate was formed. (Code Civ. Proc., § 1281.2.) The defendant- employer carries the initial burden of proving the existence of an arbitration agreement covering the claims at issue; if, and only if, defendant meets this burden will it then shift to the plaintiff to establish, by a preponderance of evidence, the factual basis for any defense to enforcement of the agreement (e.g., unconscionability). (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.)
Contract formation: did the plaintiff enter into a mutual agreement to arbitrate?
The policy “favoring” arbitration exists only for the purpose of protecting the parties’ joint desire to arbitrate their disputes. It is not intended to impose arbitration as a preferred method of dispute-resolution where both parties did not fully assent to a clearly-defined agreement to arbitrate. As noted in Romo v. Y-3 Holdings, Inc. (2001) 87 Cal.App.4th 1153, 1158:
There is no public policy in favor of forcing arbitration of issues the parties have not agreed to arbitrate. [Citation.] It follows that when presented with a petition to compel arbitration, the trial court’s first task is to determine whether the parties have in fact agreed to arbitrate the dispute. [&] We apply general California contract law to determine whether the parties formed a valid agreement to arbitrate. [Citations.]
Thus, the most effective opposition to an employer’s petition to compel arbitration is to demonstrate that the plaintiff never agreed to arbitrate in the first place. “[W]hen an employee is unaware of the contractual provisions, there is no meeting of the minds, no mutuality, and no fundamental fairness.” (Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696.) In rejecting a demand for arbitration in Metters, the appellate court forcefully expressed its disapproval of any intentional obfuscation in drafting purported arbitration agreements. (Id. at 702.)
It is important to find out if your client was aware of the alleged arbitration agreement, or of an arbitration provision contained within a larger agreement. Was your client provided with papers containing or referring to arbitration? Was an arbitration agreement a condition of employment when your client started with the company, or was an arbitration provision allegedly “phased in” sometime during your client’s employment?
Were the employment and arbitration documents properly integrated?
An employment contract, like any other contract, may generally include provisions of a separate document not physically part of the contract if those provisions have been properly incorporated by reference. Reference to the would-be incorporated document (e.g., an arbitration agreement or “employee handbook” containing an arbitration provision) must be: 1) clear and unequivocal; 2) called to the attention of the other party who must consent thereto; and 3) the terms of the would-be incorporated document must be known or easily available to the contracting parties. (Williams Constr. Co. v. Standard-Pacific Corp. (1967) 254 Cal.App.2d 442, 454.)
When reviewing a separate, allegedly- incorporated arbitration agreement, take note of numbering or formatting that might not match up between the referring document and the document being referenced. These documents are often drafted independently, and an employer may strip or alter the formatting in a way that makes it difficult (if not impossible) for the employee to know for certain what is being incorporated (e.g., an employment agreement incorporating the provisions of “Section IV” in a stand-alone employee handbook, but the handbook does not contain a Section IV).
The same logic applies to titles referenced in the main contract versus those appearing in the incorporated document. An inconsistency can demonstrate that the incorporation is not “clear and unequivocal,” especially where the arbitration provisions were allegedly “incorporated” after employment commenced.
Also look for language in the employment contract prohibiting incorporation by reference. A boilerplate employment contract may include a “Complete Agreement of the Parties” provision that states that the contract sets forth the entire understanding and agreement between the parties, and supersedes any previous or contemporaneous agreements. Such language could preclude incorporation by reference of a contemporaneously-written arbitration agreement.
Did either side fail to sign the arbitration agreement or an acknowledgment?
Was there a line on the arbitration agreement, or on an arbitration acknowledgement form, for the employee’s and/or employer’s signature? If so, and if either signature block was unexecuted, this may demonstrate the lack of mutual assent to arbitrate. Romo, supra, 87 Cal.App.4th 1153, explains the legal significance of an unsigned signature block. It discusses the significance of the fact that an employee handbook’s section on arbitration “contemplates a signature from the employee separate from that required after the heading [Employee Acknowledgment], as well as a signature by the employer.” (Id. at 1159, original capitalization, italics added.) The court reasoned that this separate arbitration agreement, requiring its own signatures, “suggests a separate and severable agreement.” (Ibid., emphasis added.) In short, signature blocks mean something and cannot be ignored. (Id. at 1158-1159.)
This conclusion had been presaged by Marcus & Millichap Real Estate Investment Brokerage Co. v. Hock Investment Co. (1998) 68 Cal.App.4th 83, 88-89. There, the arbitration agreement contained signature lines for both the seller and buyer. However, only the buyer – i.e., the party who did not draft the contract at issue – initialed the arbitration agreement. Relying on standard rules of contract interpretation, the court of appeal determined that the contract, itself, “contemplated that the arbitration of disputes provision would be effective only if both buyers and sellers assented to that provision by initialing it. Since the sellers did not initial that provision, it did not become effective.” (Id. at 92, emphasis added.)
Did the employer physically supply, or provide easy access to, all the documents necessary?
The arbitration agreement may state that arbitration will take place in accordance with a particular body of governing rules, such as “the relevant rules” of the American Arbitration Association. However, if the employer failed to adequately specify the rules to govern arbitration, or failed to provide the employee with a copy of (or easy access to) the governing rules, the employee may not have had the requisite adequate notice of the agreement’s terms needed to form a binding contract.
Ask your client whether her employer ever provided a copy of the rules governing arbitration. Also check the agreement’s language – does it direct your client to a mailing address or a Website where she could obtain a copy of these incorporated rules? But merely providing a Website may be insufficient. Does a visit to the site make clear which set of rules is meant to govern, or does the Website provide multiple sets of rules? If the latter, does the arbitration provision specify which of these multiple sets of rules will govern?
In Sparks v. Vista Del Mar Child & Family Servs. (2012) 207 Cal.App.4th 1511, 1514, the court held that the “plaintiff is not bound by the arbitration clause because. the specific rules referred to in the arbitration clause were not provided to plaintiff. ” At the very least, an arbitration agreement’s failure to include and/or specify the applicable rules is evidence of unconscionability (see discussion later in this article).
Even if an agreement to arbitrate was validly formed, unconscionability principles may preclude enforcement
Our Supreme Court’s recent decision in Sonic-Calabasas A v. Moreno (“Sonic II”) (2013) 57 Cal.4th 1109, 1142, makes explicit that “unconscionability remains a valid defense to a petition to compel arbitration” in California. Of special note, five of the seven justices went out of their way to expressly label Armendariz v. Foundation Health Psychcare Services, Inc. (“Armendariz”) (2000) 24 Cal.4th 83, as “the seminal California case to examine unconscionability in the context of adhesive arbitration agreements….” (Sonic II, 57 Cal.4th at 1159.) Thus, notwithstanding the rapidly changing legal arbitration landscape, the unconscionability defense – and its seminal expression in Armendariz – remain vibrant in California. “[T]he FAA does not require arbitration when there are valid contract defenses to the enforcement of the arbitration agreement.” (Id. at 1142.)
A court may refuse to enforce an arbitration agreement if the agreement fails to satisfy California’s conscionability standards. (Civ. Code, § 1670.5; Armendariz, 24 Cal.4th at 114.) Unconscionability has both procedural and substantive elements; “the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required…and vice versa.” (Armendariz, 24 Cal.4th at 114.)
Procedural unconscionability
Procedural unconscionability can be shown by a disjunctive test that “[focuses on] oppression or surprise. (Little v. Auto Stiegler , Inc. (“Little”) (2003) 29 Cal.4th 1064, 1071, citations omitted.) “‘Oppression’ arises from an inequality of bargaining power which results in no real negotiation and ‘an absence of meaningful choice.’” (A&M Produce Co., supra, 135 Cal.App.3d at 486, emphasis added, citations omitted.) “‘Surprise’ involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms.” (Ibid.)
Oppression
An arbitration clause or agreement is oppressive if the arbitration obligation was imposed on the plaintiff as a take-it-or-leave-it condition of employment. Our Supreme Court has made clear that conditioning employment upon acceptance of an adhesive arbitration agreement generally satisfies the procedural portion of the unconscionability test in cases other than those few involving only “the most sought-after employees.” (Little, supra, 29 Cal.4th at 1071, quoting Armendariz, supra, 24 Cal.4th at 115.)
Investigate whether your client had any real negotiating power in entering her employment contract. Did she try to request a larger salary (or other significant term), and was that request rejected? This can demonstrate the adhesiveness of the overall contract, and your client’s lack of bargaining power.
Keep in mind that whether your client had some choice in accepting this particular job versus another job does not mean that your client had the clout to reject the employer-drafted arbitration provision and still gain employment. Likewise, your client’s successfulness in their field of work does not moot the oppressive nature of a non-negotiable arbitration provision. Contracts may be adhesive despite the plaintiff being “a successful and sophisticated corporate executive.” (Nyulassy v. Lockheed Martin Corp. (“Nyulassy”) (2004) 120 Cal.App.4th 1267, 1285, citation omitted.)
Surprise
The procedural part of the unconscionability doctrine can also be satisfied by the element of surprise. If the employer did not provide your client with a copy of an incorporated-by-reference arbitration provision, your client might not have been aware of the fact that she was agreeing to arbitrate all future claims. If opposing counsel argues that your client’s employment contract made reference to arbitration in bolded, or all-capital, letters, check whether all or nearly all of the contract’s text is likewise capitalized and/or bolded. If so, the emphasis has lost any meaning.
Failure to attach a copy of the rules to govern arbitration is also an element of surprise – at the time of contracting, the employer rendered your client uninformed of the rules she would be subjected to during arbitration. As noted above, an employer’s failure to include and/or adequately specify the applicable rules is evidence of the arbitration agreement’s unconscionability. (See e.g., Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 797; Samaniego v. Empire Today LLC (2012) 205 Cal.App.4th 1138, 1146; Zullo v. Superior Court (2011) 197 Cal.App.4th 477, 486; Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387, 393; Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 721; Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 84, 89.)
Fitz, 118 Cal.App.4th at 726, involved an arbitration agreement with a highly restrictive discovery provision that violated Armendariz’s minimum discovery requirements. The employer claimed its arbitration agreement incorporated by reference the AAA rules, which trumped the improper discovery restrictions in the agreement itself. (Id. at 720-721.) Because the AAA rules were not attached, and because the employee would have “to go to another source in order to learn the full ramifications of the arbitration agreement,” the appellate court rejected the employer’s effort to save the otherwise- unconscionable provision. (Id. at 721.) Fitz found that allowing the AAA rules to govern when they were not provided to the employee “would fail to provide employees with adequate notice of the applicable rules” [of discovery]. (Ibid.)
Substantive unconscionability
Substantive unconscionability focuses on the actual terms of the arbitration agreement. Although “[n]o precise definition…can be proffered,” the issue is whether the agreement’s terms are “overly harsh” or create “one-sided results.” (A&M Produce Co., supra, 135 Cal.App.3d at 487.) Substantive “‘unconscionability turns not only on a ‘one-sided’ result, but also on an absence of ‘justification’ for it.’” (Armendariz, supra, 24 Cal.4th at 117-118, citation omitted, emphasis added.) With this in mind, you should review each provision concerning arbitration assessing: 1) whether the provision favors the employer over your client, either blatantly or implicitly; and 2) if there is any possible legitimate reason for this favoritism. Items such as those discussed below may contribute to a finding of substantive unconscionability.
Does the arbitration agreement contain a unilateral modification provision?
Check whether your client’s arbitration agreement contains a provision that gives the employer the unilateral right to amend, supplement, or otherwise modify the agreement. Take particular note of whether the employer’s execution of this provision requires any notice to, or consent from, your client. This type of provision is the antithesis of mutuality, and is powerful evidence of the unjustifiable one-sidedness of the arbitration agreement.
One example of a unilateral modification provision involves those contracts which give the employer unlimited discretion to construct additional hoops through which your client must jump before finally reaching an arbitrator. Reservation of the right to change the agreement at any time means that, even after your client has initiated a complaint, the employer might then change substantive provisions in an implicit effort to discourage your client from further pursuing her claims or to make it harder (or even impossible) to do so. Conversely, if the employer has a claim against your client, it could simply remove all arbitration-related provisions, and proceed directly to litigation in court against your client.
Does the arbitration agreement spell out prerequisites to arbitration?
A one-sided, pre-arbitral internal grievance resolution mechanism may contribute to a finding that the arbitration agreement is substantively unconscionable. Check whether your client’s agreement contains prerequisites to arbitration, such as requiring that your client “preview” the details of her complaint to the other party before arbitration. “[R]equiring plaintiff to submit to an employer-controlled dispute resolution mechanism (i.e., one without a neutral mediator) suggests that defendant would receive a ‘free peek’ at plaintiff’s case, thereby obtaining an advantage if and when plaintiff were to later demand arbitration.” (Nyulassy, supra, 120 Cal.App.4th at 1283.)
The dangers of allowing an employer to enjoy a “free peek” at an employee’s case were elaborated upon in McKinney v. Bonilla (S.D. Cal., 2010) 2010 WL 2817179. There, no arbitration could occur until after the employee submitted a detailed writing concerning the dispute and proceeded up-the-ladder through successive levels of company management. (Id. at *7.) In McKinney, the defendant’s internal dispute resolution policy theoretically applied to both parties. However, the court noted:
[I]t is difficult to see how the internal dispute resolution mechanisms could apply to claims raised by Defendant. Requiring Defendant to seek the approval of its senior management and president. imposes no burden on Defendant while requiring Plaintiff to reveal the details of his case prior to reaching a neutral mediator [does].
McKinney discusses another consideration. The defendant’s internal grievance policy required two mandatory steps before the plaintiff could reach a neutral mediator. (Ibid.) The court reasoned “the internal dispute resolution procedures serve largely to create a series of hurdles to be cleared so that only the most persistent employees will ever reach a decision maker outside of the company.” (Ibid., emphasis added.)
If your client’s arbitration agreement prohibits an arbitrator from hearing or deciding your client’s claim unless they were processed in accordance with the employer’s pre-arbitration hurdles (e.g., previewing her case to management), this one-sided burden may help you establish substantive unconscionability.
Does the arbitration agreement carve out from arbitration claims typically brought by employers?
The agreement may carve out from arbitration certain injunctive claims typically brought by employers, not employees. While facially neutral (i.e., applying to both parties), this carve-out provision exempts from arbitration those claims most likely to be brought by employers. It thus enables the employer to proceed directly to court, while restricting to arbitration claims most likely brought by employees. This contributes to an arbitration agreement’s unjustified one-sidedness and is evidence of an employer’s intent to impose arbitration not as an alternative forum, but as an inferior one.
In Samaniego, supra, 205 Cal.App.4th at 1142, an employer-promulgated arbitration provision provided that the agreement “shall not apply to any claims brought by any party for declaratory or preliminary injunctive relief involving [specified sections] of this agreement.” The court pointed out that this seemingly-bilateral provision exempts from arbitration the kind of claims typically brought by employers, while restricting to arbitration those claims plaintiffs were likely to bring. This factored into the court’s analysis of “whether the multiple one-sided provisions in the Agreement, considered together, support the trial court’s finding that it exhibits strong indicia of substantive unconscionability.” (Id. at 1147-1148.)
Mercuro v. Superior Court (“Mercuro”) (2002) 96 Cal.App.4th 167, involved a similar situation. There, employer Countrywide argued its arbitration plan’s injunctive carve-out was not unconscionable because it applied equally to claims brought by employees. (Id. at 176.) The Mercuro court recognized that this “bilateral” argument was a sham – the agreement compelled arbitration of the claims employees were most likely to bring against Countrywide, while exempting from arbitration the claims Countrywide was most likely to bring against its employees. (Ibid.)
Does the arbitration agreement impose an unconscionable cost structure?
Armendariz mandates that, where employment is conditioned on mandatory arbitration, the employer cannot impose on the employee any costs (or fees) he or she would not normally have to pay if the case were litigated in a court. (Armendariz, supra, 24 Cal.4th at 110-111; Little, supra, 29 Cal.4th at 1076.) One example of possibly unconscionable costs arises if the agreement states that the American Arbitration Association’s (“AAA’s”) costs’ provisions apply to your client’s arbitration. The applicable AAA cost provision depends on whether a dispute arises from an employer-promulgated plan, or from an “individually-negotiated” employment agreement or contract. For disputes arising from an employer-promulgated plan, the employer bears the substantial bulk of the costs.
Conversely, the AAA’s “Commercial Fee Schedule,” which applies to disputes arising out of “individually-negotiated employment agreements and contracts,” allows allocation of AAA commercial fees to either party. What this means is, if your client negotiated any part of her employment agreement (e.g., salary or vacation time), your client’s dispute might trigger the AAA’s “individually-negotiated employment agreement” cost structure, even if the balance of your client’s contract incorporates an adhesive, employer-promulgated arbitration agreement.
This result would create fundamental unconscionability problems. Moreover, uncertainty about how the costs’ issue might ultimately be resolved could “chill” your client’s decision to pursue a claim.
It is important to note that an employer cannot moot unconscionability by offering to make concessions after the litigation has commenced. Whether an employer is willing, once the employment relationship has ended, to allow arbitration provisions to be mutually applicable, or to waive aspects of provisions in an individual case, is irrelevant. Armendariz expressly states that courts are to interpret a contract, and decide whether or not it is unconscionable, as of the time the contract was made. (24 Cal.4th at 125; Civ. Code, §1670.5.)
Severability of the unconscionable provision[s] versus voiding the agreement
When faced with unconscionability in an arbitration agreement, courts may either sever the unconscionable provision(s), or declare the entire agreement void. (Civ. Code, § 1670.5 (a); Wherry v. Award, Inc. (2011) 192 Cal.App.4th 1242, 1250.) Armendariz discusses the circumstances in which these distinct remedies would be most appropriate in cases involving FEHA (or similar public policy) claims. “The overarching inquiry is whether the interests of justice. would be furthered by severance.” (Armendariz, 24 Cal.4th at 124, internal quotations omitted.)
Armendariz discusses the following factors to weigh in deciding whether severance would be appropriate: 1) whether the illegality was the product of “bad faith”; 2) whether “multiple” (i.e., two or more) provisions were tainted (thus requiring contract reformation, rather than simply striking a provision); and 3) the public policy consideration of deterring employers from “overreaching.” (Id. at 124-127.)
In Armendariz, the arbitration agreement at issue contained only two unconscionable provisions. Nonetheless, the Court concluded that “more than one unlawful provision” in an arbitration agreement weighed against severance. (Id. at 124.) Specifically, the Court reasoned that “[s]uch multiple defects indicate a systematic effort to impose arbitration on an employee not simply as an alternative to litigation, but as an inferior forum that works to the employer’s advantage.” (Ibid.) Thus, the presence of two or more unconscionable provisions in your client’s arbitration agreement demonstrates an effort by the employer to impose arbitration as an inferior forum, and weighs in favor of voidance rather than severance.
Armendariz identified two policy reasons favoring severance over voidance: 1) conserving the contractual relationship; and 2) preventing the parties from gaining undeserved benefit or suffering undeserved detriment as a consequence of voidance, particularly when there has been at least some performance under the contract. (Id. at 123-124.) Odds are that the employment relationship between your client and her employer is already over, rendering the first policy concern moot.
As for the second policy concern, the “benefit of the bargain” between your client and her employer was not the agreement to arbitrate, but rather compensation for employment. Indeed, if severance is being debated, the employer’s “bargain” has already been found both procedurally and substantively unconscionable. Moreover, striving to save the agreement despite multiple unconscionable provisions would give employers the incentive to knowingly overreach. “An employer will not be deterred from routinely inserting such a deliberately illegal clause into the arbitration agreements it mandates for its employees if it knows that the worst penalty for such illegality is the severance of the clause after the employee has litigated the matter.” (Id. at 124, fn. 13.)
Finally, when an agreement lacks mutuality, its “unconscionable taint” cannot be removed by striking or restricting “a single provision.
Rather, the court would have to…reform the contract, not through severance or restriction, but by augmenting it with additional terms. Civil Code section 1670.5 does not authorize such reformation….Because a court is unable to cure this unconscionability through severance or restriction and is not permitted to cure it through reformation and augmentation, it must void the entire agreement. [Citation.]
Stacy Tillett is a litigation attorney with Pine Tillett Pine LLP in Sherman Oaks. She received her B.A. from UC Berkeley, and her J.D. from Columbia University in 2008, where she was recognized as a Harlan Fiske Stone Scholar. During law school, she served as a judicial extern to Hon. Joseph Bianco (E.D.N.Y.); was a Moot Court editor and a member of the Columbia Journal of Law & the Arts. Before joining Pine & Pine, Ms. Tillett spent three years as an associate with Latham & Watkins.
