Nor Was The Agreement Illusory Just Because The Agreement Provided The Employer Could Change It At Any Time.
In Harris v. Tap Worldwide, LLC, B262504 (2/5 6/22/16) (Turner, Kriegler, Kumar) (certified for partial publication, except part III(C) covering unconscionability), the Court determined that, notwithstanding that the arbitration agreement was unsigned, there was a validate agreement to arbitrate, the agreement to arbitrate was not illusory notwithstanding the employer’s ability to unilaterally change the Employee Handbook, and in an unpublished part of the opinion, the agreement was not unconscionable. Therefore, the trial court’s order denying defendants’ motion to compel arbitration was reversed.
Plaintiff asserted that under Sparks v. Vista Del Mar Child and Family Services, 207 Cal.App.4th 1511 (2012), merely acknowledging receipt of an Employee Handbook was insufficient to demonstrate a valid arbitration agreement existed. Addressing that argument, the Court distinguished Sparks: First, the acknowledgment form plaintiff signed “included acknowledging both the Employee Handbook and the attached arbitration agreement.” Second, the agreement to arbitrate could also be implied-in-fact, as it was here, where the employee continued to work and accept consideration.
The Court also made short shrift of the additional argument that the agreement was illusory, because the employer could change the terms at any time. Actually, that provision only applied to the Employment Handbook, not to the arbitration provision, which could only be modified by a writing, signed by both parties. And even as to the Employment Handbook, the employer’s ability to make unilateral changes to the terms is reigned in by the covenant of good faith and fair dealing.