Modernizing Severability and Delegation Clauses in Employment Arbitration Agreements

A standard severability clause and a delegation clause can coexist in the same arbitration agreement, but until recently, California practitioners could not be certain a court would honor both. The Ninth Circuit's March 19, 2026 decision in Sandler v. Modernizing Medicine, Inc. provides important guidance for attorneys drafting, enforcing, or challenging employment arbitration agreements in California. Join Jared W. Slater, Ervin Cohen & Jessup LLP, as he examines the court's holding that incorporation of the JAMS rules constitutes "clear and unmistakable" evidence of delegation, and that a generic severability clause referencing "a court or other body of competent jurisdiction" does not undermine that delegation. The program will also address the court's FAA preemption analysis, explain why reliance on California state-court authority was reversible error, and provide practical drafting and litigation takeaways for motions to compel arbitration. This program offers practical guidance for anyone drafting arbitration agreements or litigating motions to compel in California. Audio versions of Beverly Hills Bar Association programs are eligible for Self-Study CLE credit in California. Visit www.bhba.org/podcasts for more information.