This week, a California court held that an employment arbitration agreement was unenforceable based on a provision in the agreement giving the employer the right to modify or revoke the agreement on 30 days' notice to the employee. The court held that the termination right rendered the agreement illusory and lacking sufficient "mutual" agreement to arbitrate. In Peleg v. Neiman Marcus, the employer's arbitration agreement provided that Neiman Marcus could modify or revoke the agreement on 30 days' notice to employees and that claims not "filed" with AAA by the end of 30 day period would not be subject to the agreement. Thus, the agreement did place some limit on Neiman Marcus' ability to selectively avoid arbitration of claims. Nonetheless, the court held that the notice provision was insufficient to save the agreement from being illusory. The court held that a provision allowing the employer to modify/revoke the agreement must make clear that it applies prospectively only, and does not apply to claims that are "accrued" and/or "known" prior to the date of the change. In the case of Neiman Marcus' agreement, the requirement that claims be "filed" within 30 days of notice of the change in order to be covered by the agreement to arbitrate impermissibly shortened the statute of limitations applicable to pursuing claims.
Neiman Marcus' arbitration agreement had a provision in it stating that it was governed by Texas law. The California court applied the choice of law provision (and Texas law) in holding that the modification provision rendered the agreement illusory and unenforceable. However, the court held that application of California law would essentially lead to the same result. The only difference is that under California law, if a modification provision is silent on whether it applies prospectively only, the court could "imply" or read into it that it operates prospectively only and thereby avoid a finding that it renders the agreement illusory.
Many employers' arbitration agreements contain clauses expressly giving the employer the right to make changes to the agreement, or to revoke it entirely. In order to avoid a finding that this clause renders the agreement illusory and unenforceable, employers should review their clauses and revise, as appropriate, to make clear that any changes will be made with reasonable notice to employees, will operate prospectively only, and will not apply to claims arising prior to the date of the change.