I blogged recently on Gentry v. Superior Court (2007) 42 Cal.4th 443, suggesting that it was likely to get lots easier to attack any number of kinds of contracts (and perhaps I should have said , at least consumer and form employment contracts) on unconscionability grounds. Hot on the heels of Gentry comes Murphy v. Check ‘n Go (October 17, 2007) ___ Cal.App.4th ___, A114442, a wage and hour case where the First District found substantively and procedurally unconscionable (a) the mandatory arbitration provision in an employment contract; (b) the waiver of class action provision; and (c) the requirement that the arbitrator decide matters of unconscionability.
All this is in a situation where the court agreed the language was clear, where (as in Gentry) the employee was advised to seek independent counsel, and there was apparently no evidence that the employee was required to sign the agreement , or even believed she was so required (although the court drew an inference that she must have thought the agreement was mandatory).
Indeed, it looks as if the only real factual showing used to attack the contract was sworn declarations by Murphy’s attorney and two other attorneys that binding arbitration agreements and class action waivers in employment contracts were really bad things that let employers get away with murder.
I really do believe that these kinds of provisions are dead meat in form employment contracts, and that the same logic has potential in any number of other attacks on contracts.