Alaska Employment Law

The 9th Circuit has reversed a District Court, and held that the employer hadn’t validly obtained the employee’s consent to arbitration of statutory claims (here, ADA, FMLA, and Oregon state law claims).

The panel held:

Approximately five months after Lindgren was hired, he signed a single page form which provided: “THIS AGREEMENT IS A WAIVER OF ALL RIGHTS TO A CIVIL COURT ACTION FOR A CLAIM ARISING OUT OF OR RELATED TO EMPLOYEE’S EMPLOYMENT WITH COMPANY, ONLY THE ARBITRATOR, AND NOT A JUDGE OR JURY, WILL DECIDE THE CLAIM OR DISPUTE[;]” and another which provided: “I have received a copy of the Employee Handbook and have read it. If I was not sure I fully understood a policy, I asked my supervisor to provide a further explanation. I agree to abide by all of the policies described in the Handbook.”

In Nelson v. Cyprus Bagdad Copper Corp., 119 F.3d 756, 761 (9th Cir. 1997), this court concluded that a knowing agreement to arbitrate disputes, and waive a judicial determination, is required under federal civil rights statutes and parallel state statutes. An employee has not knowingly agreed to arbitrate when the forms he signs fail to notify him that an employee handbook conntains an arbitration agreement, or that his signature on the forms require him to surrender his statutory right to a judicial forum for his civil rights claims. See id. Even though an employee acknowledges receipt of an employee handbook and agrees to read and understand the contents of it, he has not knowingly waived his right to a judicial determination. See id. We conclude that the two forms Lindgren signed did not effectuate a knowing agreement to arbitrate his civil rights claims against Public Storage.

Lindgren testified that he received a copy of the 1998 Employee Handbook fourteen months after he was hired. Under Nelson, however, the date he received the handbook is irrelevant because an employer’s “unilateral promulgation . . . of arbitration provisions in an Employee Handbook does not constitute a ‘knowing agreement’ on the part of an employee to waive a statutory remedy provided by a civil rights law.” Id. at 762. (“Any bargain to waive the right to a judicial forum for civil rights claims, including those covered by the ADA, in exchange for . . . continued employment must at the least be express[.]”).

Lindgren v. Public Storage, 2008 WL 3926107 (9th Cir. Aug. 26, 2008)(unpub.)