Weisfeiler v. ByteDance CA1/5, A168006

Irina Weisfeiler was employed by ByteDance from February 2020 to July 2022 and brought a Private Attorneys General Act (PAGA) action alleging gender-based pay discrimination under Labor Code section 1197.5.
As a condition of employment, Weisfeiler signed an offer letter and later a Confidentiality and Inventions Assignment Agreement (CIAA), both of which contained an arbitration agreement.
The arbitration agreement compelled employees to arbitrate any employment-related claims but allowed ByteDance to seek injunctive/equitable relief (including a court action) for breaches of the CIAA.
Weisfeiler opposed ByteDance’s motion to compel arbitration, arguing the agreement was both procedurally and substantively unconscionable due to lack of mutuality and its adhesive nature.
The trial court denied the motion to compel arbitration because it found the agreement lacked mutuality, was unconscionable, and its unconscionable provisions could not be severed without materially altering the agreement.

Issue	Plaintiff’s Argument	Defendant’s Argument	Held
Procedural unconscionability	CIAA was an adhesive contract, a mandatory employment condition	Weisfeiler had time to review/consult, agreement was clear, non-oppressive	True, minimal level—agreement imposed as employment condition
Substantive unconscionability—lack of mutuality	Employee must arbitrate all claims while ByteDance can go to court	Arbitration clause is mutual; broad language, employer pays costs	Agreement is one-sided; only employee compelled to arbitrate
Fee-shifting provision	Shifts attorneys’ fees for enforcement only to employee	Provision is incidental, could be made mutual by arbitration/courts	One-sided fee-shifting increases unconscionability
Severance of unconscionable clauses	Unconscionability permeates entire agreement, cannot be severed	Only limited parts are unconscionable, court should sever	Severance would materially alter the deal; severance denied

Armendariz v. Foundation Health Psychcare Servs., 24 Cal.4th 83 (Cal. 2000) (articulates standards for substantive/procedural unconscionability, mutuality required in arbitration)
Carbajal v. CWPSC, Inc., 245 Cal.App.4th 227 (Cal. Ct. App. 2016) (arbitration provisions allowing only employer to seek injunctive relief are substantively unconscionable)
OTO, L.L.C. v. Kho, 8 Cal.5th 111 (Cal. 2019) (employment arbitration agreements imposed as condition of employment are typically adhesive)
Fitz v. NCR Corp., 118 Cal.App.4th 702 (Cal. Ct. App. 2004) (arbitration clause exempting employer's typical claims is not mutual and is unconscionable)