Missouri Court of Appeals holds an employer may not reserve the right to litigate claims against an employee in court while simultaneously restricting the employee to arbitrate her employment claims.

ABSTRACT: Under Missouri law, an employment arbitration clause that includes a litigation double-standard – that is, a unilateral right to bring a claim in court for an employer while attempting to bind the employee to arbitrate all claims – is unenforceable.

The question of whether an arbitration agreement is enforceable is an oft-disputed issue prone to be volleyed between the courts and an arbitrator; such was the case in Caldwell v. UniFirst Corporation, No. ED108409, 2020 Mo. App. LEXIS 1328 (Ct. App. Oct. 27, 2020).

This case involves a contract within a contract within a contract: a delegation provision contained in an arbitration agreement, which was contained in an employment contract. This not-uncommon scenario requires a court to look at the three contracts and analyze each independent of the others. 

In Caldwell, a former at-will employee sued his former employer (UniFirst) under the Missouri Human Rights Act alleging disability discrimination and retaliation claims.  UniFirst moved to compel arbitration based on the arbitration clause in Caldwell’s employment contract.  UniFirst also asserted the employment contract contained a binding delegation clause that rendered the threshold issue of whether the case was arbitrable a matter to be determined by an arbitrator rather than by the court.  The district court denied UniFirst’s motion holding the arbitration clause lacked adequate consideration in two aspects: first, Caldwell’s at-will employment was insufficient consideration to support the arbitration agreement, and second, the arbitration clause lacked mutuality because UniFirst unilaterally reserved for itself the ability to assert certain claims against Caldwell in court while Caldwell was required to arbitrate all potential claims.

The case made its way to the Missouri Supreme Court, which transferred the case back to the Court of Appeals with the direction to reconsider the case in light of the Supreme Court’s decision in Soars v. Easter Seals Midwest, 563 S.W.3d 111 (Mo. banc 2018).  In Soars, the court held a delegation clause is severable and should be reviewed independent of any underlying arbitration clause.  But in Caldwell, the parties conceded the delegation provision was not at issue, so on reconsideration, the Court held that because the subject delegation provision – standing alone – was valid, the question of whether the arbitration agreement as a whole was valid was for the arbitrator to decide. 

Under Missouri law, an arbitration clause requires its own consideration.  Accordingly, the arbitrator ruled that while Caldwell’s at-will employment may have supplied sufficient consideration to support the employment agreement, it could not also provide adequate consideration to support the arbitration clause.  UniFirst moved to vacate the arbitration order arguing the arbitrator exceeded his power.  The trial court denied the motion and affirmed the arbitration order, which UniFirst then appealed. 

On appeal, in relevant part, only the question of whether the arbitration agreement was supported by consideration was before the Court.  At the outset, the Missouri Court of Appeals (Eastern District) held that Missouri contract law principles – including consideration – govern whether an arbitration agreement is valid.  Under Missouri law, a promise by one party to a contract is sufficient consideration in exchange for a promise by the other party.  But when one party retains the unilateral right to sidestep its obligations, that party’s promise is considered “illusory” and thus unenforceable.  Here, because only one party was bound to arbitrate its claims both the trial court and the Court of Appeals concluded that the arbitration agreement lacked mutuality of promise and therefore lacked consideration.  Thus, the arbitration provision was held unenforceable and the arbitrator’s order was affirmed. 

A little over a year ago, Baker Sterchi published a blog that describes a case in which the Eighth Circuit reminds employers to go back to the basics when administering arbitration clauses.  The Eighth Circuit held an employee’s tacit acknowledgement of an arbitration provision by, for example, clicking through the pages of an employment contract on the computer, is not evidence that an employee accepts an arbitration provision contained therein.  Last month, Caldwell v. UniFirst Corporation became another example, this time in state court, of the importance of focusing on contracts fundamentals – here, on the language of the arbitration provision itself.