« Rule 11 sanctions for attacking award | Main | Arbitrator awards sales commissions; court affirms »

Knowing and voluntary consent not required
March 27, 2006 by Ross Runkel at LawMemo

The employer mailed a new arbitration program to employees, saying that if they continued to work they would be deemed to have accepted. Melena signed a form saying she received and understood the mailing, and she continued working. Later, Melena sued the employer claiming she was discharged because she had filed a workers compensation claim. The Illinois Supreme Court said she was bound by her agreement to arbitrate. Melena v. Anheuser-Busch (Illinois 03/23/2006).

Two interesting things from this case:

"Knowing and voluntary" consent.

The court rejected Melena's argument that she did not make a "knowing and voluntary" waiver of her right to a jury trial, and stated that "knowing and voluntary" consent is not required because that is not a requirement that applies to contracts generally. The general rule is that if you sign it, then you are bound by it. The court pointed out that there is broad disagreement among the courts as to whether consent to arbitrate must be "knowing and voluntary." More discussion on this point at Workplace Prof Blog: Illinois Supreme Court Rejects "Knowing & Voluntary" Standard for Employment Arbitration.

Whether arbitration is compatible with state statute.

The court wasted a lot of energy by analyzing whether there was any inconsistency between arbitration and the state workers compensation statute. In the end, the court found no inconsistency, so it upheld the agreement to arbitrate.

That analysis is proper (as in Gilmer v. Interstate/Johnson Lane (US Supreme Court 1991)) when the question is whether a federal statute is inconsistent with the Federal Arbitration Act (FAA). The analysis is simply an attempt to be sure Congress did not mean to exclude a particular federal statutory claim from arbitration.

However, that analysis has no place when the FAA is applied to a state claim. The simple reason is that the FAA preempts state law. If the state statute expressly says there can be no arbitration, that just does not matter. The state's anti-arbitration stance is preempted. The supremacy clause of the US constitution makes federal statutes supreme over state statutes. The discussion should begin and end there.

	Web www.LawMemo.com  This form will search the LawMemo web site. It does not include the Caselaw Database.