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An Oregon appellate court has reversed an order denying an employer's motion to compel arbitration, holding that a provision for "final" and "binding" arbitration amounted to clear and express notice to the employee that the right to a jury trial was being waived.
In Hays Group, Inc. v. Biege, Nos. CV06120134, A135640, 2008 WL 4330760 (Or. Ct. App. Sept. 24, 2008), Hays hired Biege as an insurance sales representative. As a condition of employment, Biege executed a non-competition contract, and the contract contained an arbitration agreement.
After Hays terminated Biege, Biege began working for one of Hays's competitors. Hays filed suit against Biege for breach of the contract and asked that Biege be restrained from continuing his new employment. Biege countersued for wrongful termination, breach of contract, failure to pay wages, and age discrimination. Hays responded by moving to abate the proceedings and compel arbitration. The trial court denied the motion, holding the agreement unenforceable because it did not provide express notice that it was a "jury trial waiver."
On appeal, the Court found the language of the agreement was sufficiently clear to put Biege on notice that his right to a jury trial was being waived. According to the Court, the words "shall be settled by final and binding arbitration" equated to a jury trial waiver and that Biege "voluntarily agreed to waive that right" by signing the agreement.
The Court also rejected Biege's unconscionability arguments without discussion, noting only that such agreements between parties with unequal bargaining power were not per se unconscionable under Oregon law.
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