Employment Law Update: Online Applications and Agreements To Arbitrate: Don’t Bury The Lede
Date: September 11, 2024
By:
Randi K. Hyatt
When applying with the Hospital for the first time, an applicant needed to scroll through and was directed to read a pre-employment statement that included an arbitration agreement, positioned before the e-signature block. The online form also alerted the applicant that “By checking the box above next to the `I ACCEPT’ button, I am . . . agreeing to the PRE-EMPLOY[ME]NT STATEMENT which contains the Agreement to Arbitrate[.]” An applicant would not be able to submit the online application unless they checked the box and entered an e-signature.
Ms. Marshall applied to the Hospital in 2016 using this process. She was not hired. She reapplied in 2020 when there was a different online application process. Because she was a returning user of the online application system, her prior information was auto-populated into the current online application with the ability for her to make revisions.
At the top of the application webpage was a “submit” button that would permit the applicant to submit their completed (or revised) online application. Under the new online system, an applicant would not see an auto-generated pre-employment statement with the prior acceptance of the arbitration agreement unless they scrolled down to the bottom of the page. The further glitch was that a returning applicant was not required to scroll down the page to submit a new application because the “submit” button at the top of the page permitted that bypass. There were no other mandatory “scroll requirements” that would ensure the returning applicant would see and remember the arbitration agreement from their prior application.
The Fourth Circuit held that, unlike the 2016 online application process, the 2020 process did not provide the applicant with reasonable notice of the arbitration agreement. It was not sufficient notice that the applicant could have scrolled down to see the arbitration agreement, especially when there was no other notice that the following screens included an arbitration agreement. The Fourth Circuit wrote that a party’s duty to read a contract “does not morph into a duty to ferret out contract provisions when they are contained in inconspicuous hyperlinks or can be found only by scrolling down through additional screens.”
Employers that may wish to include arbitration agreements in online applications must make certain that the applicant is aware of the arbitration provision and that they specifically agree to it. With something as important as an arbitration agreement, more is better. Options for ensuring unequivocal notice to an applicant include:
- A CLEAR NOTICE AT THE BEGINNING OF THE ONLINE APPLICATION THAT IT CONTAINS AN ARBITRATION AGREEMENT THAT THE APPLICANT WILL BE REQUIRED TO READ AND SIGN (using bold and all caps).
- Require applicants to scroll through the arbitration agreement as a mandatory step before being able to “submit” the online application, including checkboxes along the way at the end of each paragraph to ensure reading.
- Require applicants to expressly acknowledge that they have read the arbitration agreement and confirm that their e-signature confirms agreement to the terms.
- Require applicants to save/print the online application, including the arbitration agreement for their records.
Please reach out to any Whiteford Labor and Employment attorney with questions regarding content for your online employment documents.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.