On Monday, March 28, 2016, the California Supreme Court affirmed the decision of the Second Appellate District holding that an arbitration agreement in an employment contract is not substantively unconscionable simply because it excludes applications for provisional relief. The California Supreme Court’s opinion in Baltazar v. Forever 21, No. S208345, 2016 WL 1176599 (Cal. Mar. 28, 2016) comes more than three years after the original appellate decision was issued, which was back in December 2012. See Baltazar v. Forever 21, Inc., 212 Cal. App. 4th 221, 150 Cal. Rptr. 3d 845 (2012). The recent decision overrules an inconsistent older case decided by the First Appellate District, Trivedi v. Curexo Technology Corp. 189 Cal.App.4th 387, 116 Cal.Rptr.3d 804 (2010). The Baltazar opinion also clarifies that other provisions in an employment contract that are designed to protect the employer’s confidentiality will not likely render the contract’s arbitration provisions unconscionable.

In Baltazar, the plaintiff put forward three arguments in support of her claim that the arbitration clause in question was substantively unconscionable. First, the arbitration clause expressly exempted applications to a court for a provisional remedy, specifically citing to California Code of Civil Procedure § 1281.8. Second, in describing the sorts of actions that would be subject to the arbitration provision, the contract included a non-exhaustive list that happened only to describe actions likely to be brought by employees. Third, the contract required that the parties take steps to protect the employer’s proprietary information during arbitration proceedings.