New Jersey Supreme Court Declines to Revisit Ruling Permitting Age Bias Suit Against Best Buy To Move Forward

On Monday, November 20, 2017, the New Jersey Supreme Court denied a petition for certification filed by Best Buy Co. Inc. (“Best Buy”) to review a state appellate panel decision regarding a former employee’s age discrimination lawsuit on the grounds that the ex-worker, Kevin Dugan (“Dugan”), never explicitly agreed to a policy that such disputes be arbitrated.

In December 2016, a Burlington County Superior Court judge granted Best Buy’s motion to compel arbitration and dismiss Dugan’s age discrimination suit. This past August, however, a two-judge appellate panel reversed the lower court’s decision, ruling that the motion was improperly granted. The appellate panel agreed with Dugan’s position that he had never explicitly agreed to the arbitration policy.

Dugan was an employee of Best Buy since 2000, and had been a manager since 2003. On February 4, 2016, he logged on to an eLearning program used by Best Buy to introduce employees to an arbitration policy that the company sought to implement on March 15 of that year. The last screen on the program stated, in part, “As with any other Best Buy policy, by remaining employed, you are considered to have agreed to the policy.” There was also a box labeled “I acknowledge,” which was clicked by Dugan, even though Dugan allegedly did not read the policy.

The trial court ruled that the combination of Dugan’s clicking the “I acknowledge” box and Dugan’s continued employment with Best Buy constituted his assent to the arbitration policy, which calls for employment disputes to be settled via arbitration rather than litigation. The appellate panel, however, ruled that Dugan’s mouse-click on the “I acknowledge” box only meant that he read and understood the policy-not that he agreed to it.

The two-judge appellate panel also rejected Best Buy’s argument, citing Jaworski v. Ernst & Young U.S., that Dugan’s continued employment constituted his assent to the policy, but for different reasons. Judge Scott J. Moynihan distinguished this case from Jaworski because Dugan only remained employed for three weeks after the policy took effect before his termination, while the plaintiff in Jaworski remained employed for five years after the policy took effect. Judge Moynihan found that three weeks is not a significant enough time period to constitute Dugan’s agreement to the policy. In a concurring opinion, however, The Honorable Francis J. Vernoia stated that a long period of employment is not required to constitute assent. Judge Vernoia pointed to the vague language used by Best Buy as the reason Dugan’s continued employment did not equate to his agreement. Additionally, Judge Vernoia found that Best Buy did not unambiguously advise Dugan that his further employment would equate to his assent, citing the language in the statement, “by remaining employed, you are considered to have agreed to the policy.” Judge Vernoia stated that the language only describes how Best Buy will perceive an employee’s continued employment, not that the employee’s continued employment constituted his/her agreement to the policy.

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Wichert, Bill. “Best Buy Can’t Sell NJ Justices On Reviewing Age Bias Suit.” Law 360. Last modified on November 20, 2017.