Employment Law Daily Dispute over who ‘clicked through’ training containing arbitration agreement precludes dismissal
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Wednesday, October 16, 2019

Dispute over who ‘clicked through’ training containing arbitration agreement precludes dismissal

By Joy P. Waltemath, J.D.

Could it have been possible for Family Dollar employees to have skipped over training containing the arbitration agreement? The court couldn’t say.

Because of conflicting evidence as to whether a fired Family Dollar employee had actually read and electronically assented to an arbitration provision contained in the company’s “Family Dollar University” policy training course, a federal district court in Tennessee refused to compel arbitration and dismiss her ADA and FMLA claims. The employee claimed that, as she had done herself with new employees she trained, her manager opened the training and clicked through the modules to get to the tobacco training module, which employees had to read and understand to avoid breaking Tennessee law concerning tobacco sales. She said she neither read nor “clicked” the arbitration provision. The fact that her manager denied that the manager clicked through the training for the employee simply amplified the material issue of fact as to whether an agreement to arbitrate had been reached, reasoned the court (Roberts-Banks v. Family Dollar of Tennessee, Inc., October 9, 2019, Reeves, P.).

Family Dollar University training. Looking to Tennessee contract law, the court pointed out that a valid, enforceable contract requires consideration and mutual assent, manifested in the form of an offer and an acceptance. Family Dollar had evidence that the employee electronically signed the Arbitration Agreement: Her username was used to access the FDU’s policies and training courses, including the Arbitration module. This training module provided employees with an electronic version of the Arbitration Agreement to view and print; employees are told to click a checkbox that they have read all pages of the Arbitration Agreement and another checkbox acknowledging their review and acceptance of the Arbitration Agreement. Finally, by electronic signature, an employee acknowledges the agreement is supported by adequate consideration.

How employees said it was done. However, the employee provided record evidence that when employees started work, the manager who was on duty would begin the computer training under the employee’s name. She acknowledged that she later had done this herself throughout her tenure for both new employees and employees who needed additional training. The password used by the training manager was a general password to open the session.

For new employees, the training manager would click through the introductory modules and acknowledge that the module had been read (although neither the manager or employee would have read it), in order “to rapidly move through the program up to the point of the tobacco training module). This tobacco module taught employees how to avoid breaking Tennessee law when ringing up tobacco products on the cash register. “Employees were actually expected to read that part of the training.”

“Never saw” the arbitration agreement. The employee stated that her store manager clicked through the first part of the training under the employee’s name, including the Arbitration module, and the employee completed only the tobacco training module. Then she went back to the floor to continue on the job training, she said, since when employees were performing training on the computer, they were not available to work in the store. She did not dispute that the modules were clicked off as done, but she contended that she viewed only the tobacco module. As she never saw, read, or signed the agreement, she claimed there was no agreement to arbitrate.

Contrary evidence confirms the dispute. Family Dollar had evidence refuting the employee, contending the company’s scheduling and time records showed that the employee’s manager did not work on the day it claimed the employee executed the Arbitration Agreement—and the manager had denied that she completed the training for the employee, or that anyone else was asked to do so. In the court’s view, that only confirmed there was a genuine issue of material fact as to the validity of the agreement to arbitrate—and it would require credibility determinations to resolve. Consequently, the court denied the request to arbitrate and would not dismiss the employee’s claim.

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