The case is Weiss v. Macy's Retail Holdings, Inc., a summary order issued on July 12. The courts love arbitration agreements. Any employment lawyer will tell you this. Management also likes arbitration agreements, too, because arbitration is cheaper and faster and there's no sympathetic jury who will award the plaintiff a million bucks.
In this case, Macy's had a process by which it mailed the employee an opt-out form that required the employee to send it back if he does not want any workplace dispute to be resolved through arbitration. The opt-process is a problem because we often put this correspondence in a pile and then forget about it and the next thing you know you've agreed to some product or service because you forgot to mail it back.
Plaintiff has a case under the Americans with Disabilities Act. As the Court of Appeals (Newman, Hall and Carney) puts it, "Weiss does not contend that he ever returned an opt-out form to Macy’s. He asserts, however, that he never received any such mailed documents from Macy’s or attended any in store training about Macy’s new dispute resolution program or arbitration. He avers further that, had he received the Election Form, he would have chosen to opt out of arbitration. He also recalls at least one incident in which he did not receive a tax form that Macy’s asserted it had mailed to him at his home."
So how do we resolve this? In opposition to the motion to compel arbitration, plaintiff put on evidence about how mail is processed at his home. Plaintiff lived with his family, including his brother, Joseph.
during the period relevant to this suit, Weiss lived with his family, including his brother, Joseph. Both Weiss and Joseph state that, because of Weiss’s learning disability, Joseph reads and explains to Weiss any mail addressed to him that is “important or official,” including employment documents. For example, Joseph assists Weiss in reading and understanding documents that relate to Weiss’s retirement benefits and health insurance. Joseph avers that Weiss never showed him any of the arbitration-related documents that Macy’s purportedly mailed. He further declares that, had he seen the documents, Joseph would have advised Weiss to sign and return the opt-out form. A contemporaneous coworker of Weiss, Janet Rios, also stated in a sworn affidavit that she never received any written or verbal information from Macy’s about the employee dispute resolution process or about the possibility of opting out of arbitration.The case is remanded to the district court. Plaintiff did not simply merely deny receipt of that opt-out letter. "He provided evidence of his family’s regular procedure for reviewing with him the mail he received and asserted, with sworn support, that the relevant mailings did not arrive and go through that process. We conclude, therefore, that Weiss has sufficiently rebutted New York’s mailing presumption to create a disputed issue of material fact." Plaintiff may still get his day in court.