Employment & Labor Law
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Brasington v. EMC Corp.
28 Fla. L. Weekly D2353a (Fla. 1st DCA October 13, 2003)
Plaintiff in the lower court signed an employment agreement with Defendant, which included an arbitration clause. She was later terminated and brought suit under the Florida Civil Rights Act and a violation of the Florida Whistleblower Act. The trial judge entered an order compelling arbitration. On appeal, Appellant argued the arbitration clause was unenforceable because it forced an employee to pay half the arbitrator's fee, her own attorney's fee and other expenses of arbitration if she participates in the selection of an arbitrator. This, Appellant argues, violates her right to fee shifting under the Florida Civil Rights Act and the Florida Whistleblower Act. In Musnick v. King Motor Company of Fort Lauderdale, the 11th Circuit held that the existence of a fee splitting provision does not automatically render an arbitration agreement unenforceable. 325 F.3d 1255 (11th Cir. 2003). The party seeking to avoid arbitration has the burden of proving that the obligation to share arbitration expenses would effectively deny remedies available by statute. Id. The plaintiff in this case did not allege that the expenses of arbitration would be so high as to prevent her from pursuing her claims. Furthermore, she will be able to present issues regarding expenses, regardless of the outcome of arbitration.
Plaintiff also contended the arbitration would prevent her from receiving the kind of systemic injunctive relief that is available under the applicable statutes because EMC's arbitration policy provides the arbitrator may not change the company's practices or procedures. The court disagreed, holding an award of injunctive relief is regularly awarded by arbitrators and nothing about this dispute would prevent it here.
Finally, plaintiff argued the arbitration agreement was procedurally unconscionable because the terms of the arbitration policy were not disclosed to her when she signed the employment agreement. The court held plaintiff could not rely on her ignorance. The clause was not inconspicuously located in the agreement, nor was it written in fine print.
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