Best Buy’s Click to Accept vs. Click to Agree Policy
On August 11, 2017, the Appellate Division reached a decision in the matter Dugan v. Best Buy Co., 2023 N.J. Super. Unpub. LEXIS 2053 (App. Div. August 11, 2017). The case involved the enforceability of an Arbitration Agreement, which required Best Buy employees to pursue employment-related claims in arbitration rather than court.
While the Court found that Best Buy’s arbitration policy satisfactorily alerted employees that they were waiving their right to sue in court, it determined that the plaintiff, a former employee, did not assent to the terms of the agreement when he electronically acknowledged the policy. The Court noted that a party can assent to the terms of a contract by electronically clicking on a website box. However, in this case, the Court determined that the plaintiff’s mouse-click on the acknowledgment box did not manifest his assent to the policy, only that he read and understood the policy. The Court stated that Best Buy could have firmly established the plaintiff’s assent by adding the words “and agree to the terms of the policy” to the acknowledgment box. The Court could not find any evidence that the plaintiff agreed to the terms of the policy, and as a result, the Arbitration Agreement was deemed unenforceable as to the employee.
Language
The wording of an arbitration clause can make all the difference when it comes to whether the clause will stand up in court if it is challenged as unenforceable. As a matter of practicality, it is important for employers to be as clear and specific as possible when drafting an enforceable arbitration clause. Employers should be mindful of avoiding misleading language and focusing on accurately describing the forum and process. Nothing should be left to the imagination.
This case also highlights the problems that accompany the digital age. The enforceability of “click to accept” online agreements will often depend on the fine print at the bottom of a computer screen which the average person skims – at best. Given the emphasis placed on a user’s assent, employees should pay close attention to the fine print of electronic acknowledgments and understand what they are agreeing to when they click “I accept.”
Aimee S. Weiner, Associate, concentrates her practice in litigation with an emphasis on employment and education law. Aimee has worked on a variety of matters in the State and Federal Courts and the Office of Administrative Law. She handles various facets of employment litigation including claims of age, race, disability, and gender discrimination as well as cases involving breach of contract. To find out how your arbitration clause would stand up in court, contact Aimee.