Arbitration is of course a creature of contract, and so a party may not be compelled to arbitrate unless it has agreed, or is deemed to have agreed, to arbitrate a dispute. An offeree may be deemed to have manifested its agreement to an arbitration regime by various sorts of conduct, including in some instances inaction in the face of notice. However, there is a line in the sand in that regard in the Sixth Circuit when it comes to employer-employee relations. That is, an employer’s notice of its institution of a mandatory arbitration policy or program is, without more, insufficient to compel an employee to arbitrate a subsequent dispute. Something more is required in order to be able to infer the employee’s knowing assent to the new term of employment.

In Cerjanec v. FCA, US, LLC, 2017 WL 6407337 (E.D. Mich., Dec. 15, 2017), there was no written bilateral arbitration agreement between employer and employees. Rather, in 1995, the employer — Fiat Chrysler Automobiles (FCA) — gave notice of its new “Employment Dispute Resolution Process” (“EDRP”), which would thereafter require non-union employees to arbitrate their employment-related disputes with FCA. When some of those employees later commenced an age discrimination class action suit against FCA, the employer moved to compel arbitration, arguing that the plaintiffs had agreed to arbitrate when they continued their employments after receiving notice of the arbitration policy. Id. at *1. But the Court held that “in the absence of any signed agreement or any FCA-distributed materials expressly telling Plaintiffs that they would accept the terms of the EDRP by continuing their employment,” it could not find that there was an agreement to arbitrate. Id. at *14.

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