In ordering arbitration of an employment dispute, a federal district court in New York rejected the employee's claim that he opted out of the arbitration agreement because there was no evidence to substantiate that claim.

In DuBois v. Macy's East Inc., No. 06 CV 6522(NGG)(LB), 2007 WL 3193169 (E.D.N.Y. July 13, 2007), Macy's implemented a dispute resolution program entitled Solutions InStore (SIS), which was a four-step process for resolving all workplace disputes with Step 4 being binding arbitration.

All employees were given an opportunity to opt out of the arbitration agreement. An opt-out form was mailed to employees with instructions to contact the SIS if they mailed in the opt-out form but did not receive confirmation that SIS received the form. According to the SIS office, they never received an opt-out form from DuBois, a Macy's employee. Further, there was no evidence that DuBois had ever contacted SIS regarding the opt-out form.

After his employment was terminated, DuBois sued Macy's for sexual harassment and wrongful discharge. In response, Macy's moved to compel arbitration pursuant to the SIS program. DuBois responded by claiming that he opted out of the arbitration agreement and produced a signed copy of the opt-out form.

The Court rejected DuBois' argument because there was no other evidence to substantiate his claim that he opted out of the arbitration agreement. As the Court noted, DuBois had a copy of the instructions advising him to contact SIS if he did not receive confirmation that SIS received his opt-out form. Accordingly, the Court concluded that DuBois was on notice that he had to act affirmatively to exercise his election to opt out of the arbitration agreement. Further, DuBois received follow-up correspondence from SIS thanking him for agreeing to participate in arbitration. The Court determined that because DuBois took no action, he effectively acquiesced to arbitration.