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The California Court of Appeal’s decision in Alberto v. Cambrian Homecare (2023) 91 Cal.App.5th 482 and a growing line of follow-on cases have focused attention on something many employers have treated as boilerplate: the confidentiality agreement that sits alongside the arbitration agreement. Courts are increasingly willing to read those documents together and, where the combined effect is one-sided, to refuse to enforce arbitration at all.
For employers who rely on arbitration as a key risk-management tool, Alberto is not just an isolated case—it is a roadmap plaintiffs’ lawyers are now using to attack arbitration programs based on surrounding confidentiality and injunctive-relief language.
What Alberto Said
In Alberto, the Court of Appeal affirmed an order denying the employer’s petition to compel arbitration of wage-and-hour claims. The problem was not the arbitration agreement alone, but the way it operated together with a separate confidentiality agreement signed the same day.
Key points from the decision:
- Agreements signed together were treated as one package. Applying Civil Code section 1642, the court held that the arbitration agreement and the confidentiality agreement—executed as part of the same hiring transaction—had to be read together, even though they were separate documents.
- One-sided access to court for injunctions. The confidentiality agreement required the employee to “consent” to an immediate injunction in court, without bond and without the usual showings, if the employer claimed a breach of confidentiality. In practice, that meant the employer could bypass arbitration for the claims it was most likely to bring, while the employee’s claims were locked into arbitration.
- Restrictions on wage The confidentiality agreement treated “compensation and salary data” and other employee information as protected, making it risky for employees to discuss wages or working conditions. The court viewed this as directly interfering with rights under the Labor Code and with employees’ ability to investigate and pursue representative claims. Such language also violates the federal National Labor Relations Act.
Taken together, the court concluded these terms created a substantively unconscionable, employer-favored dispute-resolution framework and declined to rescue the arrangement through severance.
How Courts Are Using Alberto Now
Subsequent decisions show that Alberto is now part of the standard playbook for opposing motions to compel arbitration:
- Silva Cross Country Healthcare, Inc. (2025). The court relied on Alberto and Civil Code section 1642 to read an arbitration agreement together with an employment agreement and affirmed a finding of unconscionability. Read as a package, the employer’s claims could be litigated in court with robust fee rights, while employees’ claims were channeled into arbitration with more limited remedies—an imbalance the court found unacceptable.
- Gurganus IGS Solutions LLC (2025). A separate confidentiality/non-disclosure agreement allowed the employer to seek injunctive relief “without posting any bond and without proof of actual damages.” The court treated that kind of “short-circuiting” of the normal injunction standards as substantively unconscionable and part of an overall lack of mutuality.
- Jenkins v. Dermatology Management, LLC (2024). While Jenkins did not turn on a confidentiality agreement, it cited Alberto in approving a trial court’s refusal to sever multiple unconscionable provisions from an arbitration agreement that created what the court viewed as an inferior forum for employees.
The trend is clear: courts are scrutinizing not just arbitration clauses in isolation, but the entire package of documents signed at hire to see whether, in practice, the employer has given itself more favorable access to courts and remedies.
Drafting Lessons: Where Agreements Are Most Vulnerable
In light of Alberto and its progeny, employers should reassess their arbitration and confidentiality forms in at least four areas:
1. Documents Signed Together Will Be Read Together
If employees sign an arbitration agreement, a confidentiality agreement, an IP assignment, and other “onboarding” documents at the same time, courts are likely to treat them as parts of a single transaction.
- Overly aggressive terms in a confidentiality agreement can infect the enforceability of the arbitration agreement.
- Simply separating the provisions into different documents is not enough; what matters is the combined effect on how disputes will be resolved.
2. One-Sided Injunctive Relief Is a Red Flag
Courts have signaled increasing discomfort with provisions that allow the employer to:
- Go straight to court for “immediate” injunctions,
- Obtain relief “without bond,”
- Avoid showing irreparable harm or other traditional elements, or
- Do all of the above based on the employee’s advance “consent.”
Even where courts acknowledge that employers may have a legitimate need for provisional injunctive relief (for example, to protect trade secrets), they are drawing a line at clauses that effectively guarantee the employer a shortcut to relief in court while the employee’s claims remain confined to arbitration.
A safer approach is to:
- Preserve the ability to seek provisional relief in court,
- Avoid language suggesting automatic or pre-consented injunctions, and
- Make clear that both sides remain subject to the usual legal standards for injunctive relief.
3. Overbroad Definitions of “Confidential Information”
Many confidentiality agreements define “Confidential Information” so broadly that it arguably includes wages, hours, or other working-condition information. Employers should:
- Expressly carve out wage and working-condition discussions, consistent with Labor Code sections 232 and 5 and, for non-supervisory employees, Section 7 rights under the NLRA; and
- Avoid language that could be read as threatening litigation or fee exposure if employees talk to one another about pay or workplace issues.
Courts are sensitive to any contractual language that appears to chill collective action or investigative efforts in support of representative claims.
4. Systemic Lack of Mutuality Across the “Package”
Alberto, Silva, and Gurganus all stress mutuality. The concern is not merely one sentence here or there, but whether the overall structure gives the employer multiple avenues to court, stronger remedies, and fee rights, while steering employees’ claims into a more constrained arbitral forum.
Risk factors include:
- Employees must arbitrate the claims they are likely to bring, but the employer can litigate its preferred claims in court;
- Non-mutual attorney’s fees provisions across the combined documents; and
- Injunctive or other remedies realistically available only to the
Where courts see a “systematic effort” to tilt the playing field, they are more willing to strike down arbitration in its entirety rather than surgically severing offending clauses.
What Employers Should Do Now
Given the growing use of Alberto-style arguments, California employers should not wait for these issues to surface in the next lawsuit. Practical next steps include:
- Audit your onboarding
- Revisit confidentiality
- Rework injunctive-relief
- Check for mutuality and fees
- Plan a Thoughtful Roll-Out
Courts are not abandoning arbitration, but they are signaling that arbitration programs cannot be paired with overly aggressive confidentiality and remedies language without consequence. Employers who proactively tighten their documents now—before the next motion to compel is challenged under Alberto—will be in a far stronger position when disputes arise.
JMBM’s Labor & Employment attorneys counsel businesses and management on workplace issues, helping to establish policies that address problems and reduce job-related lawsuits. We act quickly to resolve claims and aggressively defend our clients in all federal and state courts, before the Department of Labor, the NLRB, and other federal, state and local agencies, as well as in private arbitration forums. We represent employers in collective bargaining negotiations and arbitration. If you have questions or need guidance on how these changes may affect your business, please contact a JMBM attorney.
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