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The Tenth Circuit held that an employee assented to an arbitration agreement through her continued employment because even though she initially objected to the agreement, the employer told her that continued employment would constitute assent. The Court based its holding on the applicable Oklahoma law.
In Hardin v. First Cash Financial Services, Inc., Nos. 05-6090, 05-6107, 2006 WL 2848087 (10th Cir. Oct. 6, 2006), Hardin worked as a store manager for First Cash. In 2002, First Cash implemented a Dispute Resolution Policy (DRP) requiring arbitration of all employment-related disputes. In a letter announcing the DRP, First Cash advised its employees that the DRP would become mandatory on March 1, 2003 and that continued employment after that date would constitute acceptance of its terms.
Upon receiving the letter, Hardin met with her supervisor and refused to agree to the DRP. The supervisor explained that continued employment after March 1 would constitute acceptance regardless of her objection. Following this meeting, Hardin had no further discussions regarding the DRP, though early in 2003, First Cash posted notice in the store that the DRP would become mandatory on March 1.
After being fired in December 2003, Hardin sued First Cash for alleged sex discrimination. First Cash filed a motion to compel arbitration. In denying the motion, the district court found that Hardin’s refusal to agree to the DRP served as a counteroffer that First Cash accepted by not terminating her employment. First Cash appealed.
On appeal, the Court held that Hardin assented to the DRP through her continued employment. The Court acknowledged that Oklahoma law is somewhat unsettled on the issue. On one hand, there is an Oklahoma statute providing that “acceptance must be absolute and unqualified.” On the other hand, Oklahoma courts have held that an employee’s protest does not negate an employer’s unilateral change to an at-will employment contract where the employee continues her employment.
Given the difficulty of predicting which principle would prevail in an Oklahoma court, the Court resolved the issue based on “classic contract principles of offer, counteroffer, and acceptance.” Specifically, the Court found that: (1) First Cash made an offer to Hardin by advising her of the DRP; (2) Hardin made a counteroffer by objecting to the DRP; (3) First Cash rejected Hardin’s counteroffer; and (4) Hardin accepted the outstanding offer of continued employment subject to the terms of the DRP.
The Court’s holding is in harmony with the Eight Circuit’s holding in Berkley v. Dillard’s, Inc., 450 F.3d 775 (8th Cir. 2006). In Berkley, the employee refused to sign a form acknowledging the receipt of documents describing the employer’s arbitration program. Applying Missouri law, the court held that the employee accepted the terms of the arbitration program through her continued employment.
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