We spend a lot of time debating the respective merits of fine points of
the law. The reality, however, is that judges are people too. Despite
their training, robes, and gavels, the decision of many cases comes down to one key fundamental
question: did one side treat the other side fairly? Courts don't like litigants
that try to pull a fast one.
v. Bickford Senior Living Group [pdf] [an enhanced version of this opinion is available to lexis.com
subscribers] provides a perfect example. It also illustrates why
arbitration of employment disputes often is a losing battle.
Bickford filed a motion to compel Hergenreder to
arbitrate her disability discrimination case under an arbitration clause buried
in its employee handbook. Section 12 of the 16-section handbook-for which
Hergenreder had signed an acknowledgment that she had read and understood its
terms-provides as follows: "Dispute Resolution Process Please
refer to the Eby Companies Dispute Resolution Procedure (DRP) for details." The
separate, 20-page DRP, in turn, required that employees submit all claims to
arbitration. The employee testified that she never saw the DRP, let alone
signed for it.
The court concluded that simple inclusion of a reference
to the DRP in the handbook did not constitute a binding and enforceable contract
between Hergenreder and Bickford to arbitrate all employment claims:
The best Bickford can say is that Hergenreder was
informed that, for "Employee Actions," she should "refer" to the DRP. In
Bickford's view, Hergenreder "was or should have been aware of the DRP and so
is bound by it." Yet she was not required to refer to the DRP; the "handbook
does not constitute any contractual obligation on [Hergenreder's] part nor on
the part of Bickford Cottage[.]"
[T]here is no evidence that the DRP was "posted" in a
place-either physical or electronic-available to Hergenreder, that there were
meetings at which Hergenreder was notified of the policies, or that Hergenreder
was aware of the DRP at all.... Bickford does not argue that it actually
distributed or made the DRP available to Hergenreder.
Employers, if you are going to require employees to
arbitrate their claims against you, do yourself a favor and at least have the
employee sign a separate arbitration agreement. You might succeed on
enforcing an alternative form of an alternative dispute resolution agreement
(such as a handbook clause). But, you will spend the money you perceive you are
saving through arbitration by trying to enforce your right to arbitrate.
Visit the Ohio Employer's Law Blog for more
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