Online arbitration clauses: Too small to read on a smartphone? (Cal. App. decision)

Drafters of online employment- and consumer contracts might want to try to plan for consumers and employees to claim that they couldn’t read an arbitration provision because it was too tiny to read on their smartphones. That happened in a 2023 California decision: A court rejected an employer’s petition to compel arbitration of an employee’s claim of racial discrimination (among other things), in part because:

• When the employee was hired, she had to complete an online onboarding package that included an arbitration provision.
• The employee asserted that she did not own a computer and completed the onboarding process on her Apple iPhone 6 smartphone.
• The employer asserted that the employee could have expanded the display on her phone to make the arbitration provision bigger.
• The court was not impressed, remarking that the employer “cite[d] to no evidence in the record that [the employee] could have or knew how to perform such tasks.”

See Hasty v. Am. Auto. Ass’n of N. Calif., Nev., & Utah, No. C097674, slip op. at 10, 17 (Cal. App. Dec. 21, 2023) (affirming denial of petition to compel arbitration; emphasis in original).