Lessons in Drafting and Implementing an Enforceable Mandatory Arbitration Agreement

Date   Sep 16, 2019

Recently, the California Supreme Court invalidated a mandatory arbitration agreement in OTO, LLC v. Kho (August 29, 2019) finding the agreement was both procedurally and substantively unconscionable. The case involved arbitration of a former employee’s wage claims. Under California law, employees have access to an inexpensive administrative process to pursue wage disputes. The Court previously had ruled that an arbitration agreement is not categorically unconscionable solely because it entails a waiver of that administrative process. An agreement to arbitrate wage claims can be enforceable so long as it provides an accessible and affordable process for resolving those disputes.

The salient facts for purposes of this article are that Kho was a service technician for a Toyota dealership. Three years after his employment started, Kho was approached by a low-level employee who asked him to sign several documents, including an arbitration agreement. He was required to sign them immediately while the employee waited for them. According to the Court, Kho had no opportunity to read them nor were their contents explained to him. He was not provided a copy. The Court noted that Kho’s first language is Chinese; however, it is unclear what his level of English proficiency is. The Court stated that the arbitration clause was contained in a dense, single-spaced paragraph filling almost an entire page in very small typeface. The allocation of arbitration costs was not explicitly addressed. The agreement did not explain how to initiate arbitration.

The Court stated that generally applicable contract defenses such as unconscionability may be applied to invalidate arbitration agreements. Procedural unconscionability addresses the circumstances of contract negotiation and formation. Substantive unconscionability addresses the fairness of an agreement’s actual terms. Both procedural and substantive unconscionability must be established to invalidate an arbitration agreement. The burden of proving unconscionability rests on the party asserting it.

The Court found that the arbitration agreement’s execution involved a high degree of procedural unconscionability. The Court stated that “the agreement appears to have been drafted with an aim to thwart, rather than promote, understanding.” The Court further stated that, given the high level of procedural unconscionability, even a low degree of substantive unconscionability may render the agreement unenforceable. The Court concluded the agreement was unenforceable stating: “Had One Toyota set out the terms of its agreement in a legible format and fairly understandable language, or had it given Kho a reasonable opportunity to seek clarification or advice, this would be a different case.”

Although the test of unconscionability varies from state to state, lessons can be drawn from this case about how to draft and implement an arbitration agreement:

  • The agreement should be drafted in simple, understandable English, plus other languages as needed.
  • Employees should be given a period of time to read the agreement and an opportunity to ask questions before signing.
  • Employees should be provided a copy of the agreement.
  • Make the process clear, including but not limited to, the allocation of arbitration costs and how to initiate the arbitration process.
  • The agreement should be a legible, stand-alone document, double-spaced, and prominently advise employees of waivers of rights.

Employers’ Bottom Line:

A number of courts are hostile to mandatory arbitration agreements in the employment context. Unconscionabilty is a contract defense to the enforceability of an arbitration agreement. Employers should draft and implement such agreements in a manner to maximize enforceability. This California case provides a roadmap of some of the things to avoid in order to improve the likelihood of enforceability.

If you have any questions regarding mandatory arbitration agreements or other labor or employment issues, please feel free to contact the author of this Alert, Rick Warren,, a partner in our Atlanta office. You may also contact the FordHarrison attorney with whom you usually work.