An employer’s arbitration agreement suffered a high degree of procedural unconscionability, but no substantive unconscionability, and so arbitration should be compelled. The high degree of procedural unconscionability arose because the arbitration agreement was in small, dense type filled with legalese that was difficult to interpret and because the employer presented it to the plaintiff when he was already an employee, without explanation and without any right to opt out or negotiate its terms. However, following Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, an arbitration clause is not unconscionable merely because it waives an employee’s right to bring wage claims before the Labor Commissioner under Lab. Code 98.2, unless the arbitration forum is not affordable or accessable to the employee. Here, the employer recognized that it would have to pay the full costs of arbitration. A favorable one-sided attorney fee provision was provided by law in Lab. Code 218.5. And the mere fact that the employee had to retain counsel to pursue arbitration was not “harsh” since the same might be true if the employer appealed from the Labor Commissioner’s decision absent arbitration. The arbitration was just as accessible to the employee as an appeal from the Labor Commissioner’s decision might be. The employer did not waive the right to compel arbitration by first moving to compel arbitration the day before the Berman hearing under Lab. Code 98.2.
California Court of Appeal, First District, Division 1 (Margulies, J); August 21, 2017; 2017 WL 3599067