A California federal court sided with an employer to hold that by checking a box on the company’s intranet site, the employee provided consent to arbitrate future employment disputes.
A Southwest Airlines flight instructor, Suzanne Tanis, sued the airline for wage and hour violations on behalf of herself and similarly situated employees. In response, the employer moved to compel arbitration.
Southwest uses an intranet site called “SWALife” to distribute certain employment policies to its workers, the company explained. If Southwest makes an announcement through the site, it appears on the main page when an employee logs on to the system. The announcements provide employees with electronic links to the written policies and instruct them to “CHECK THE BOX” to acknowledge that they have received, read and reviewed the policies and that they understand and agree to comply with them.
The announcement appears on the main page of SWALife until either the employee electronically signs the acknowledgment or 14 days have passed.
Southwest provided the court with an exhibit documenting that on August 14, 2017, Tanis executed the Q3 announcement, which included the employer’s alternative dispute resolution (ADR) program. The system showed that the plaintiff saw the announcement and checked a box affirming receipt of the policy.
Although Tanis did not directly address whether or not she clicked the box on the intranet site, she told the court it was possible to bypass SWALife announcements and argued that she may not have been the one who accessed the system on August 14 or checked the box.
U.S. District Judge Cynthia Bashant was not persuaded. First overruling the plaintiff’s evidentiary objections and finding the exhibit admissible under the business record exception, the court then found the plaintiff failed to present a disputed material fact as to whether she actually checked the box.
Tanis did not attest that anyone else had access to her username and password; instead, she merely speculated that the employer may have had a list of each employee’s username and password. “Someone using Plaintiff’s username and password logged into Plaintiff’s SWALife account and clicked the box,” the court said. “The evidence shows this action could only have been done by plaintiff.”
The plaintiff did not dispute that she checked the box and did not even state that she could not recall whether or not she checked the box, Judge Bashant noted. “She only generally declares that she ‘could bypass’ the announcements, and ‘if’ she checked the box, she did not understand what she was doing.”
As California law recognizes the validity of electronic signatures, which are legally binding if they are in compliance with the Electronic Signatures in Global and National Commerce Act, the court found that Southwest had met its burden of authenticating the plaintiff’s signature. This same evidence demonstrated that Tanis checked the box after acknowledging the ADR agreement, meaning she consented to arbitration, the court added.
Tanis was also unsuccessful with her fallback argument that her consent was invalid because the agreement was inconspicuous.
“The SWALife announcement is a total of four paragraphs, the second of which is titled ‘Alternative Dispute Resolution Program,’” and provided a hyperlink to the policy itself, Judge Bashant wrote. “Simply because Plaintiff may not have clicked the hyperlink (and was not required to before checking the box), does not make its existence hidden or unclear. The agreement to arbitrate is valid.”
Finding no dispute of material fact as to whether the parties formed an agreement to arbitrate, the court granted the employer’s motion to compel arbitration.
To read the order in Tanis v. Southwest Airlines, Co., click here.
Why it matters: A victory for Southwest, the California federal court decision provides reassurance for employers who use electronic acknowledgments for policies, including arbitration agreements.