Thursday, November 7, 2013
In Tillman v. Macy's, Inc., the Sixth Circuit reversed a District Court's denial of Macy's motion to compel arbitration. The issue in the case was whether Tillman had consented to Macy's four-step dispute resolution program by continuing to work at Macy's and not availing herself of two opportunities to opt out of the program.
Tillman had been employed since 2001 by May Department Stores, which merged into what is now Macy's, Inc. in 2005. The new dispute resolution program was rolled out in 2006, and at that time, employees were notified of their ability to opt out of the program and that if they did not choose to opt out they would not be permitted to bring claims against Macy's in court. There followed another opportunity to opt out in 2007. Macy's claims that Tillman received notice of her right to opt out of the dispute resolution program on at least two occassions. The District Court found that Tillman had no duty to read the materials sent to her, and it found it unsurprising that she did not read the information about the dispute resolution program carefully, since the company was sending employees a lot of information at the time of the merger. Tillman never signed any agreement or knowingly waived her right to a trial, and so the District Court refused to compel arbitration.
The Sixth Circuit disagreed. It found that Macy's various information sessions and mailings constituted an offer to Tillman that she accepted by continuing to work for Macy's and not opting out of the dispute resolution program.
In finding a waiver of prospective civil rights claims, courts consider five factors:
(1) plaintiff’s experience, background, and education; (2) the amount oftime the plaintiff had to consider whether to sign the waiver, including whether the employee had the opportunity to consult with a lawyer; (3) the clarity of the waiver; (4) consideration for the waiver; as well as (5) the totality of the circumstances.
The Sixth Circuit concluded that, applying these five factors, Ms. Tillman waived her right to bring a claim in court. A fine test that one! If you are considering the totality of the circumstances, why even mention the other four?