Arbitration – Opt Out – Acceptance of Offer to Resolve All Disputes by Arbitration

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Employee’s decision to continue working and not opt out does not in any way indicate her willingness and desire to enter and be bound by the Dispute Resolution Agreement.

We reversed the court of appeals and remanded to the circuit court for discovery and trial.

The issue before us was whether the parties formed an arbitration agreement. There is no doubt Amedisys Holding, LLC, made its employee Nicole Lampo an offer to resolve all disputes by arbitration. The question was whether Lampo accepted the offer. Amedisys argued Lampo accepted the offer simply by not taking steps to “opt out” of the “Amedisys Arbitration Program” and continuing to work. The circuit court denied Amedisys’s motion to compel arbitration, concluding Lampo’s failure to opt out of the program did not constitute acceptance of Amedisys’s offer, and thus no arbitration agreement was formed. The court of appeals reversed.

Amedisys and Lampo had an employment contract. Lampo was performing work in reliance on, and being paid pursuant to, the original July 8 offer and contract that did not contain an arbitration provision. The terms of Lampo’s employment did not change after she received the August 6 offer to form an arbitration agreement. The work Lampo continued to perform was no different than the work she previously performed, nor was the compensation she received for her work any different from the compensation she previously received. Thus, Lampo’s decision to continue working after receipt of the August 6 offer was not performance of the proposed Dispute Resolution Agreement; it was performance of the original employment contract formed a month before. There is no evidence Lampo continued to work after August 6 “in reliance on” the proposed Dispute Resolution Agreement rather than the original offer she accepted when she began employment on July 8.

Amedisys’s argument that it formed a unilateral contract with Lampo to arbitrate all disputes fails for the additional reason that an agreement to arbitrate is, by definition, a bilateral contract. Amedisys’s second argument took us to the crux of this case, whether Lampo accepted the offer to form an arbitration agreement, as Amedisys argued, by her “fail[ure] to ‘opt out’ of that agreement” and continuing to work for Amedisys. Initially, this appeared to present a novel question of law in South Carolina, for we have never before considered whether a party may be deemed to have accepted an offer by not “opting out” of the offer. Now that we studied the matter thoroughly, however, we found the question is not novel at all, and we proceeded to resolve the question by applying the standard contract principles that have always governed the formation of contracts in this State.

Amedisys contended that because the August 6 email and accompanying documents informed Lampo she would be deemed to have accepted the offer if she did not opt out and continued to work, her failure to opt out was a manifestation of her assent to the terms of the Dispute Resolution Agreement and her intent to accept the offer. We did not accept this argument, as we found no evidence in the record that Lampo’s silence and inaction in not opting out of the arbitration program indicated to Amedisys her willingness and desire to enter and be bound by the proposed arbitration agreement. We held, therefore, as a matter of law, that Lampo did not accept Amedisys’s offer to form an arbitration agreement.

Silence and inaction can constitute acceptance of an offer, but only in certain circumstances. In this case, however, there is no circumstance that renders Lampo’s silence and inaction to be an acceptance of Amedisys’s offer. We held Lampo’s decision to continue working and not opt out does not in any way indicate her willingness and desire to enter and be bound by the Dispute Resolution Agreement.

Reversed and remanded.

Lampo v. Amedisys Holding LLC (Lawyers’ Weekly No. 010-015-25, 15 pp.) (John C. Few, J.) Appealed from Georgetown County Circuit Court (Benjamin H. Culbertson, J.) James Paul Porter and Harper Lee Hutson, both of Cromer Babb & Porter, LLC, of Columbia, for Petitioner; Jason D. Keck, of Chicago, IL, and George A. Reeves, III, of Columbia, both of Fisher & Phillips, LLP, for Respondents. South Carolina Supreme Court