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Take a look at your pre-dispute employment arbitration agreements. Do they have standard prevailing party attorneys’ fees provisions and provisions which purport to allow the parties access to the courts for injunctive relief? If they do, and if the arbitration forum’s applicable rules have not been provided to the employees, these agreements may be unenforceable – rendering the employer liable for attorneys’ fees if the employer attempts to enforce such agreements. That was the result in Trivedi v. Curexo Technology Corporation (Sept. 28, 2010, RG09459748) ____ Cal.App.4th _____ (2010 WL 3760224).

In Trivedi, the Court of Appeal found that a pre-dispute employment arbitration provision was procedurally unconscionable, because it was prepared by the employer and was a mandatory part of the arbitration agreement, but the employer failed to provide the employee with a copy of the arbitration rules under which the employee would be bound.

The Court of Appeal also found that the clause was substantively unconscionable, because it did not limit the employer’s right to recover attorneys fees to instances where the employee’s claims were found to be “frivolous, unreasonable, without foundation, or brought in bad faith,” which is the standard under California case law, and because it was far more likely that the employer, not the employee, would seek to enforce an injunctive relief provision in court.

After refusing to enforce the provision, the Court of Appeal awarded costs and attorneys’ fees to the employee on appeal.

Pre-dispute employment arbitration agreements which purport to expand employers’ rights to attorneys’ fees, and which contain injunctive relief provisions, and which are executed without ensuring that the employees have received the rules of the applicable arbitration forum, may be unenforceable in light of this new decision.