Should CA Arbitration Agreements Allow Employees To Opt Out?

My colleague Brian Berkley in Philadelphia wrote a piece in today's Law360 titled "Can Opt-Out Provisions Save Arbitration Clauses?" He focuses on recent litigation involving Uber and its efforts to enforce arbitration agreements (which include class action waivers) against employees seeking to litigate wage and hour claims in court. Brian explains that Uber has been able to enforce its arbitration agreement against plaintiffs claiming that it's unconscionable by pointing out that workers had the opportunity to opt out of the agreement. It's a thoughtful article and I encourage you to read it.

I absolutely agree that it's harder for workers to argue that an arbitration agreement was forced upon them if they are given a fair opportunity to opt out of its terms. The harder question, from my perspective, is this: Is the advantage of being able to use that argument worth the disadvantage of not having your arbitration program cover all employees?