2011 in Review: Didn’t You Read the Memo?

The Northern District of Georgia twice tackled the issue of assent to arbitration in the employment context last year, both cases resulting in arbitration.  In McBride v. Gamestop, Inc., 2011 WL 578821 (N.D. Ga.), employees of GameStop sued in federal court over alleged violations of the Fair Labor Standards Act of 1938.   The defendant sought to compel arbitration based on an agreement contained in the “Gamestop C.A.R.E.S.” manual customarily provided to all hires. Plaintiffs denied receipt of the manual but admitted that they had signed an “Acknowledgment on Gamestop C.A.R.E.S. brochure” form, because “their manager stated that if they did not sign the form, they would receive a reduction in their hours.”

Gamestop successfully argued that even if the employees never received the arbitration agreement, they were on notice of its existence and that continued employment was conditioned upon assent to such agreement.  The facts indicate that “plaintiffs’ supervisor spoke to them about it, a flowchart visually depicting the C.A.R.E.S. process was posted on the wall of the store where the plaintiffs worked, the C.A.R.E.S. Rules were made available in the in-store Procedure Manual, and the C.A.R.E.S. Rules were available on Gamestop’s intranet of the agreement.”  Based on the multiple references in the environment coupled with the signed acknowledgement form, the court found that a reasonable person would be on notice of the duty to arbitrate and that plaintiffs’ continued employment after such notice constituted consent.

In Shubert v. Scope Products, Inc., 2011 WL 3204677 (N.D. Ga.), a similar story of “he said, she said” ensues.  Here the plaintiff alleged violations under the Equal Pay Act.  While hired five years prior, in 2002 the plaintiff received an employment handbook and signed a form titled “Employee Acknowledgement Form,” which contained an arbitration clause.  The plaintiff argued a lack of mutuality in the agreement and that her claim fell outside the scope of the agreement.  The court found, however, that the plain language of the clause included the plaintiff’s claims, and that continued employment for an at-will employee is an established mode of consideration for a contract.



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