Labor & Employment Law Daily Southwest Airlines employee consented to arbitration by ‘checking the box’ on intranet site
Friday, March 15, 2019

Southwest Airlines employee consented to arbitration by ‘checking the box’ on intranet site

By Marjorie Johnson, J.D.

Though the employee argued she could have “bypassed” the announcement on the intranet site, she failed to refute documentation showing that she electronically checked the box agreeing to the alternative dispute resolution program.

A Southwest Airlines employee consented to arbitration by logging into the company’s intranet site and checking a box acknowledging that she had read and reviewed the company’s alternative dispute resolution procedure, a federal court in California ruled. Granting the airline’s motion to compel arbitration of her individual wage-hour claims (but denying its motion to dismiss her class claims), the court found that even though her signature was not on the document generated, there was no triable issue that she agreed to binding arbitration (Tanis v. Southwest Airlines Co., March 11, 2019, Bashant, C.).

The employee, a Southwest Airlines field instructor, brought this wage-hour suit asserting that she and similarly situated employees were misclassified as exempt. Southwest moved to compel arbitration while she sought a jury trial or permission to engage in discovery on the existence of the arbitration agreement. Challenging the validity of the arbitration agreement, she argued that Southwest could not show that she ever entered into an arbitration agreement, which was accessed solely through the company’s intranet site.

Agreement obtained through intranet site. When using its intranet site to distribute employment policies to its workforce, Southwest would make an announcement through the site, which would appear on the main page when an employee logged on to the system. The employee would be provided with electronic links to the written policies and instructed to “CHECK THE BOX” to acknowledge that they had received, read, and reviewed the policies and that they understand and agreed to comply with them. When an employee checked the box and submitted her acknowledgement, an electronic record was created with their identifying information.

A Southwest communications analyst provided a report that on August 14, 2017, the employee saw and executed an acknowledgment which included the ADR program. Though the acknowledgment did not contain her signature, the documentation showed that she checked the box below the announcement which stated that she had “read, reviewed, and been given the opportunity to review” and “received” the ADR program. She also had the option to click on a link to download and view the ADR program.

Authentication of signature. Contesting whether she accessed the agreement on the date in question, the employee argued that she could “bypass” the site’s announcements whenever she logged in and that there was “no requirement” that she check any box before continuing to the home page. But the court pointed out that consent to an arbitration agreement can be express or implied in fact, and California law recognizes the validity of electronic signatures. Additionally, electronic records and signatures that are in compliance with ESIGN (the Electronic Signatures in Global and National Commerce Act) are legally binding. Indeed, courts “have long upheld agreements where a contract was formed when an employee clicked on a button to assent to an agreement in which the terms themselves are accessed by a hyperlink.”

No dispute she checked the box. Here, Southwest’s analyst declared that all employees had a unique username and password to log onto the intranet site. The employee did not claim that anyone else had access to this information but instead only speculated that Southwest may have had a list of every employee’s username and password. This unsupported assertion was contradicted by the analyst’s declaration that employees were to treat the username and password as confidential and may not allow others to access their accounts.

In sum, someone using her username and password logged into her intranet account and clicked the box, and the record showed that this action could only have been done by her. Accordingly, no triable issue existed as to whether she checked the box affirming that she had read and received the notification that she was submitting to arbitration. Because the checking of the box was “the act of” the employee, her signature was authenticated.

Checking of box demonstrated agreement. The record also showed that her checking of the box demonstrated her agreement to arbitration. When an employee logged into the intranet site while the announcement was available, the page first informed the user about the ADR program and stated that “by checking the box below, you are acknowledging you have received a copy of the ADR Program” and reviewed it. The page then clearly directed the employee to “CHECK THE BOX BELOW to consent to electronic delivery, acknowledge receipt, and continue to the [intranet] home page.” The box appeared to the left of the statement: “I, [name], have read, reviewed, and been given the opportunity to review and I have received the:” notification of the arbitration agreement. The user could then click the hyperlink to the ADR program if she wished to do so. Since the record demonstrated the employee checked the box acknowledging the ADR agreement, she consented to arbitration.

Not inconspicuous. The court also rejected her contention that any consent was invalid since the agreement itself was inconspicuous. Simply because she may not have clicked the hyperlink (and was not required to before checking the box) did not make its existence hidden or unclear.

Dispute encompassed in the terms. Finally, the court rejected her assertion that the ADR program did not apply to her because its effective date was listed as July 24, 2015, and she did not “continue” employment after that date since she did not begin work until October 2015. Because she “accepted an offer of employment” after the effective date, she was subject to the terms of the agreement.

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