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Employment Contract and Unconscionability

In Adams, we explained that Circuit City’s arbitration agreement does not meet these minimum requirements because it limits the remedies that would otherwise be available in a judicial forum, and fails to ensure that employees do not have to pay unreasonable fees, costs, or expenses “as a condition of access to the arbitration forum.” Id. Here, we again conclude that Circuit City’s arbitration agreement requires employees to forgo essential substantive and procedural rights and that the clauses regarding coverage of claims, remedies, arbitration fees, cost-splitting, the statute of limitations, class actions, and modifications, render the arbitration agreement excessively one-sided and unconscionable.
IV. Severability
Like California law, Washington law grants courts discretion to sever unconscionable contract provisions or refuse to enforce the entire contract. …
In each of the California cases-Mantor, Ingle, and Adams-we held that the unconscionable terms rendered the arbitration agreement unenforceable. In Ingle, we specifically determined that the 1998 arbitration agreement was “permeated with unconscionable provisions” and was unenforceable in its entirety because “any earnest attempt to ameliorate the unconscionable aspects of Circuit City’s arbitration agreement would require this court to assume the role of contract author rather than interpreter.”… Applying Washington law, we also conclude that the unconscionable provisions of the 1998 DRRP pervade the entire arbitration agreement and any attempt to sever those provisions would render the procedure unworkable.
For the foregoing reasons, we conclude that the arbitration agreement between Circuit City and Al-Safin is substantively unconscionable.

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