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P1266 Arbitration cannot be misused to accomplish a de facto waiver of unwaivable statutory employment rights; to prevent this, a trial court should decide whether class arbitration is likely to be significantly more effective and practical for vindicating statutory rights than individual litigation or arbitration, and should examine the modest size of potential individual recovery, the potential for retaliation against class members, the fact that absent class members may be ill informed about their rights, and other real world obstacles to the vindication of class members' rights; the fact that an employee was given an opportunity to opt out of an arbitration agreement contained in an employment contract is not, alone, sufficient to prevent a class-wide litigation/arbitration waiver from being procedurally unconscionable; the Discover Bank rule does not apply only to consumer contracts.CitationGENTRY v SUPERIOR COURT (Misclassified Employees) 42 C4 443 [See: Armendariz v Foundation 24 C4 83, T/AT 9/00; Discover Bank v Superior Court 36 C4 148, P/AT 7/05; Gentry v Superior Court (RevGrtd) 135 CA4 944, P/AT 3/06]
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