California's Berman hearing is waivable. Sometimes. Maybe.

An incomprehensible doctrine of unconscionability. Back in 2011 the California Supreme Court held that it would be both unconscionable and against public policy for an arbitration agreement to waive a Berman hearing (an administrative wage claim process). Sonic-Calabasas A, Inc. v. Moreno, 51 Cal.4th 659 (2011) (Sonic I). The US Supreme Court ordered California to reconsider that case in light of AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011).

California now acknowledges that "efficient, streamlined procedures" is a fundamental attribute of arbitration with which state law may not interfere. Therefore, the Federal Arbitration Act (FAA) preempts California's rule that Berman hearings are categorically non-waivable. Sonic-Calabasas A, Inc. v. Moreno (California 10/17/2013) (Sonic II).

Yet the California court leaves room for a finding that a Berman waiver could still be unconscionable. The court seems to be saying that the arbitration process must provide "an effective and low-cost approach to resolving wage disputes," whatever that might mean.

Two dissenters would hold that the arbitration agreement in this case is not unconscionable, and that the FAA peempts the unconscionability analysis set forth by the majority.

It looks like California's unconscionability jurisprudence, in the context of arbitration, is suffering death by a thousand cuts. The California court tries valiantly to protect employees and consumers who have signed arbitration agreements, in spite of the FAA which makes such agreements enforceable. In doing so, it creates an ever-more complex and incomprehensible analytical scheme.