Employers who want to bypass jury trials of employment disputes in favor of arbitration got another boost in a recent case from the Eastern District of Missouri. In Karzon v. AT&T, Inc. (E.D. Mo. 1/7/14), the court ruled that E-mail notification of an arbitration proposal combined with an “opt-put” option was sufficient to bind employees to the company’s arbitration agreement. The plaintiff sued AT&T, alleging he was subject to a hostile work environment, unequal discipline, and was unlawfully terminated based upon his national origin. AT&T asked the court to dismiss the lawsuit and order the parties to submit the case to arbitration. In late 2011, AT&T offered its employees the opportunity to arbitrate any employment disputes with the company. The plaintiff argued he was not required to arbitrate because he never agreed to the arbitration offer. AT&T notified employees by e-mail it had implemented an arbitration program to resolve disputes between the AT&T Companies and their employees. The e-mail included a link to a web page containing the text of the arbitration agreement. AT&T’s records showed the plaintiff received the e-mail and accessed the associated web page through the link on the same day. The e-mail to employees stated in bold print “REVIEW REQUIRED” and “Notice Regarding Arbitration Agreement”. The notification told employees they had the option whether to participate in the arbitration program. The program also gave the employees the option whether or not to participate. However, in order not to participate in mandatory arbitration, the employee had to “opt out” using the instructions and website. If the employee did not opt out, the company presumed the employee agreed to arbitration. The Federal Arbitration Act (FAA) makes arbitration agreements enforceable just as any other contract. Although it has been extensively litigated, courts have held in recent years that even employment agreements containing arbitration provisions are enforceable. The only way an employee can get out of an arbitration provision is by showing the agreement is not enforceable for some other reason. In Karzon, plaintiff claimed the arbitration agreement AT&T presented to its employees was not enforceable because it was not in writing. The court rejected that argument, finding the e-mail communication was sufficient to qualify as a writing. The plaintiff also argued no contract was formed because he never accepted the agreement. The court ruled, however, that under Missouri law an offer may be accepted by conduct, which includes failing to opt out of the agreement as was the case here. While agreements to arbitrate employment disputes are not common in Iowa, this case nonetheless is a reminder that such an option is available for employers who want to avoid jury trials. To make an arbitration agreement enforceable, however, employers should ensure employees have fair notice and a real opportunity to agree or not agree. . That was accomplished in the Karzon case by making participation in arbitration optional and not mandatory. The second important consideration is making sure the employee consents to be bound by the arbitration agreement. In the Karzon case it was enough for the court that the plaintiff failed to opt out of participation. While some states will require stricter evidence of consent to participate, this case shows that an opt out provision may be a viable alternative. Of course, whether arbitration is a better option for employers than litigating in court is another question altogether. That is a subject for another day.