Arbitration is a matter of contract, and an arbitration agreement is only enforceable so long as the agreement exhibits the essential elements of a valid contract. Kunzie v. Jack-In-The-Box, Inc., 330 S.W.3d 476, 480-81 (Mo. App. E.D. 2010). Missouri courts are clear that one of the essential elements of contract formation is a “mutuality of agreement” between the parties. Id. at 483. A “mutual agreement” is reached when “the minds of the contracting parties [] meet upon and assent to the same thing in the same sense at the same time.” Id. “A meeting of the minds occurs when there is a definite offer and unequivocal acceptance.” Id. at 484. Moreover, for an acceptance to be effective it must be positive and unambiguous. Id. Importantly, a party cannot be required to arbitrate a dispute that it has not agreed to arbitrate, and silence generally cannot be translated into acceptance. Id. at 480, 484. Accordingly, “the manifestation of an existing employee’s unequivocal intention to be bound by an employer’s proposed arbitration agreement as a new condition of employment necessitates more than the employee’s mere continued work to satisfy Missouri’s meeting of the minds requirement.” Id. at 486.
Relying on the foregoing principles, the Missouri Court of Appeals recently held that an employee’s continued employment with mere knowledge of the existence of an arbitration agreement is insufficient as a matter of law to establish unequivocal acceptance of the agreement. Katz v. Anheuser-Busch, Inc., ED95493, 2011 WL 2323698, at *8 (Mo. App. E.D. June 14, 2011). In Katz, the defendant employer had in place a dispute resolution program governed by an arbitration agreement that contained the following language:
By continuing your employment with Anheuser–Busch Companies, Inc. or any of its subsidiary companies (“Company”), you and the Company are agreeing as a condition of your employment to submit all covered claims to the Anheuser–Busch Dispute Resolution Program (“DRP”), to waive all rights to a trial before a jury on such claims, and to accept an arbitrator’s decision as the final, binding and exclusive determination of all covered claims.
There was no dispute that the plaintiff employee never signed the arbitration agreement at issue. The record also contained contradictory affidavits regarding the plaintiff’s knowledge of the dispute resolution program, with the plaintiff claiming that she never saw or read any part of the arbitration agreement. The evidence presented suggested that the plaintiff had knowledge of the existence of the dispute resolution program, but was unaware of the claims covered by the agreement. The plaintiff also presented evidence that she did not recall being informed that her continued employment with the defendant employer constituted an acceptance of any agreement requiring her to submit any covered claims to arbitration. The trial court ultimately ruled in favor of the plaintiff, finding that the only evidence the defendant offered of the plaintiff’s acceptance of the arbitration agreement was her continued employment with the defendant following the distribution of the agreement.
On appeal, the Missouri Court of Appeals found that the plaintiff had little more than a general knowledge of the existence of the defendant’s dispute resolution program. Such evidence, the court opined, “falls short of establishing [the plaintiff’s] knowledge of the details of any such program, or the applicability of such program to her employment.” The court further noted that it was not aware of any legal authority holding that an employee’s general knowledge or awareness of the existence of a contract constitutes the “positive and unambiguous” “unequivocal acceptance” required under Missouri law. In affirming the trial court’s ruling, the Missouri appellate court made its position clear: “[Defendant] asks this Court to rule that an employee’s general knowledge of the existence of a policy, or communication with co-workers about a policy, as a matter of law, constitutes acceptance of the policy. That, this Court will not do.”