Sunday, October 25, 2009

House to Begin Streaming Sessions Online

House to Begin Streaming Sessions Online: "CHARLESTON - House Speaker Rick Thompson said the House of Delegates will begin streaming the audio of House floor sessions and committee meetings on the Legislature’s web site during the 2010 regular session, which convenes in January."

Thursday, October 15, 2009

Arbitration agreement enforceable despite being contract of adhesion, W.Va. Supreme Court rules

An arbitration agreement requiring the parties to arbitrate a sexual harassment suit was found to be enforceable, despite being a contract of adhesion, the West Virginia Supreme Court ruled in State ex rel. Clites v. Clawges, No. 34887 (W.Va. Supr. Ct. Oct. 13, 2009).

First., the Court found that it was not preempted by the Federal Arbitration Act (FAA) from "giving judicial review to determine whether the Agreement at issue is valid and enforceable under our state contract law. "

Then, "having fully considered the Agreement" the Court found it to be a contract of adhesion:
The entire Agreement is boiler-plate language that was not subject to negotiation and there is no contention in the record that the Petitioner had any role or part in negotiating the terms of the Agreement. In State ex rel. Saylor v. Wilkes, 216 W.Va. 766, 773, 613 S.E.2d 914, 921 (2005), we found a similar arbitration agreement to be a contract of adhesion, noting that it was a “[s]tandardized contract form offered . . . on essentially [a] 'take it or leave it' basis . . . [leaving the] weaker party . . . no realistic choice as to its terms.”
However, the analysis does not end there:
the fact that the Agreement is a contract of adhesion does not necessarily mean that it is also invalid .... Having determined that the Agreement is a contract of adhesion, we turn to the issue of whether the Agreement is “unconscionable or was thrust upon [the Petitioner] because [she] was unwary and taken advantage of[.]” Syllabus Point 3, in part, Board of Education of the County of Berkeley v. W. Harley Miller, Inc. We have previously held that “A determination of unconscionability must focus on the relative positions of the parties, the adequacy of the bargaining position, the meaningful alternatives available to the plaintiff, and 'the existence of unfair terms in the contract.'” Syllabus Point 4, Art's Flower Shop, Inc. v. Chesapeake and Potomac Telephone Company of West Virginia, Inc., 186 W.Va. 613, 413 S.E.2d 670 (1991).
The Court ruled that the Agreement was not unconscionable.  The contract, as written, stated that each “party shall bear its own fees and costs incurred in connection with the arbitration” and that the arbitrator “shall have the discretion to award fees and costs to the prevailing party in accordance with prevailing law.”  However, the circuit court noted that TeleTech had “asserted and stipulated through affidavit that the arbitration will take place in Morgantown, West Virginia, and that TeleTech will pay for all costs of expenses that would not be incurred by the Plaintiff in court, including the fees of the arbitrator[,] the costs of the hearing room, and a stenographer.”  This turned out to be a key stipulation for the employer.  In finding that the agreement was not unconscionable, the Court noted that it required arbitration to take place where the employee worked and there was no proof in the record that the employee was exposed to exorbitant costs as a result of the agreement "as TeleTech agreed to pay all costs associated with the Arbitration in excess of what the Petitioner would have been required to pay to maintain her civil action in the circuit court."

The Court refused to issue a writ prohibiting Judge Clawges from sending the case to arbitration.

So, even if your arbitration agreement, as written, is unconscionable, there may still be hope for compelling arbitration if the employer is willing to stipulate that it will absorb most or all of the costs of arbitration.