Failure To Translate Relevant Contractual Provisions Into Spanish For Spanish-Speaking Employees Elevated This Case “To A High Degree Of Procedural Unconscionability”
Car wash employees brought a putative class action against their employer for wage and hour violations. The trial court held the arbitration agreement was unconscionable and refused to enforce it. Employer appealed. Carmona v. Lincoln Millenium Car Wash, Inc., B248143 (2nd Dist. Div. 8 April 21, 2014) (Flier, Bigelow, Rubin) (unpublished).
Reviewing the matter de novo, the Court of Appeal agreed with the trial court that the arbitration agreement was permeated with procedural and substantive unconscionability, and that the trial court did not err in refusing to enforce it.
I have noted in an earlier post that the failure to provide a Spanish translation of an arbitration provision to a Spanish speaking party to the contract can present an issue of procedural unconsionability. See my December 14, 2013 post on Castellanos v. Quality Nissan, Inc (unpublished).
In Carmona v. Lincoln Millenium Car Wash, Inc., it was the failure of the employer to translate an important portion of the agreement into Spanish, even though the employees could not read English, that “elevates this case to a high degree of procedural unconscionability.”
The Court of Appeal also agreed with the finding of substantive unconscionability, resulting “from multiple defects demonstrating a systemic lack of mutuality that favored the car wash companies, including the exemption from arbitration of the car was companies’ confidentiality claims, the attorney fees provision, the ‘free peek’ provision, and the presumption of harm in favor of the car wash companies.”
The so called “free peek” provision required employees to discuss problems or concerns with anything relating to employment confidentially, and with their employer, before informing outsiders – including attorneys, courts, or arbitration providers. The employees’ objection was that the provision gave employers a “free peek” at plaintiff’s case, and was not a mutual obligation placed upon the employer.
The recurrent lesson to be drawn from the many California cases that address substantive unconsionability is that if you want your arbitration clause to survive judicial scrutiny, draft one that is even-handed.
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