Burr & Forman Orlando attorneys, Howard S. Marks and Sheena A. Thakrar, successfully appealed a Florida trial court’s ruling denying Hobby Lobby’s motion to compel arbitration in a wrongful termination lawsuit filed by a former employee, Alan Cole. The Fifth District Court of Appeal reversed the trial court’s decision and held that the arbitration agreement Cole signed when he began his employment with Hobby Lobby was valid and enforceable.

Cole began working as a store clerk at Hobby lobby’s Ocala store in 2015. In 2018 he filed a lawsuit against Hobby Lobby claiming that Hobby Lobby had improperly discharged him in retaliation for a workers’ compensation claim he had filed earlier that year. Based upon the arbitration agreement Cole signed as a condition of his employment, Hobby Lobby moved to compel arbitration of Cole’s alleged retaliation claim.

Though he did not deny that he executed the arbitration agreement, Cole claimed that he did not understand what he was signing and that he believed that he would not get the job at Hobby Lobby if he did not sign the agreement. He also argued that the substantive terms of the agreement were unconscionable because, among other things, he was required to give up his right to a jury trial. For these reasons, Cole argued that the agreement was unconscionable under Florida law, and therefore invalid and unenforceable. Agreeing with Cole, the trial court denied Hobby Lobby’s motion to compel, forcing Hobby Lobby to appeal the decision.

The Fifth District Court of Appeal recently reversed the trial court’s order, holding that the arbitration agreement is binding, enforceable and not unconscionable under Florida law.

Specifically, the Fifth District reasoned that there was no evidence to suggest that Cole could not read the arbitration agreement or that he was coerced or pressured into signing it. According to the appellate court, the agreement’s terms were neither hidden within a larger document nor buried in the fine print. The Court also rejected Cole’s jury-trial waiver argument, explaining that all arbitration agreements, by definition, waive a jury trial. Similarly, the appellate court rejected Cole’s other arguments based upon the language of the agreement itself: contrary to Cole’s assertions, the appellate court held that the agreement (1) did not shorten the applicable statutes of limitation, (2) did not fail to identify which arbitration rules would apply, and (3) did not impermissibly shift attorneys’ fees onto Cole.  Lastly, the Court reiterated that, in Florida, a take-it-or-leave-it arbitration agreement, itself, does not render the agreement invalid. This decision is consistent with Florida’s public policy of favoring the use of arbitration agreements as a means of dispute resolution between employers and employees.

At Burr, Howard Marks practices in the firm's Litigation group focusing on commercial litigation, construction law litigation, alternative dispute resolution, and labor and employment law. Howard also practices civil rights, constitutional, and First Amendment law. Howard is Board-Certified by the Florida Bar in Civil Trial and Business Litigation and has litigated more than 100 jury and non-jury trials in federal and state court throughout Florida. He is also a Board Certified Civil Trial Advocate by the National Board of Trial Advocacy, which is the highest level of recognition by the Florida Bar of the competency and experience of attorneys in the areas of law approved for certification by the Supreme Court of Florida.

At Burr, Sheena Thakrar practices in the firm's Litigation group, focusing on representing individual and corporate clients in a variety of civil litigation matters including breach of contract disputes, construction disputes, lender liability disputes, and employment disputes.  Sheena also practices in the firm’s appellate practice group and has briefed numerous appeals in both state and federal court.  Sheena has also served as an adjunct professor of legal drafting at the University of Florida Levin College of Law.