Daryl Clemons, V. Securitas Security Services Usa, Inc.

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DARYL CLEMONS, individually and No. 88317-8-I on behalf of all others similarly situated, DIVISION ONE

Respondent,

UNPUBLISHED OPINION

v.

SECURITAS SECURITY SERVICES USA, INC., a Delaware corporation,

Appellant.

SMITH, J. — In 2008, Daryl Clemons was hired by Securitas Security Services USA, Inc. and signed an employment applicant agreement that included a statement that employees were subject to a mandatory binding arbitration program, and he also signed an Arbitration Program Acknowledgment. In 2011, Clemons signed a dispute resolution agreement requiring arbitration. Securitas fired Clemons in 2023, and he initiated a class action complaint for unpaid wages. Securitas then moved to compel arbitration based on the 2011 dispute resolution agreement. The court denied Securitas’s motion to compel arbitration. Securitas appeals. Because the agreement was procedurally unconscionable, we affirm.

FACTS

In 2008, Daryl Clemons was hired by Securitas Security Services USA, Inc. and signed an employment applicant agreement that included an arbitration

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program acknowledgment which indicated he had received a copy of Securitas’s arbitration program which sets forth the terms of the program. In 2011, Clemons signed an updated dispute resolution agreement which required “all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial.” The agreement was not signed by Securitas. Securitas fired Clemons in 2023, and in 2025, he initiated a class action complaint against Securitas for unpaid wages. Securitas then moved to compel arbitration based on the 2011 dispute resolution agreement that Clemons signed.

To support Securitas’s motion, Melissa Wigger, Regional Vice President of

Human Resources for the North Central Region for Securitas, declared:

Employees were not required to sign the arbitration agreement, but were able to refuse to do so without penalty. Signing the arbitration agreement was voluntary for all employees and the agreement contained a provision allowing the employee to opt out if they did not wish to agree to arbitrate any disputes related to their employment. Instructions for opting-out were included in the arbitration agreement.

Wigger also declared that she reviewed Clemons’s personnel files and acknowledgments signed by Clemons.

After Wigger filed her declaration, Clemons filed a declaration stating that he did not recall signing an arbitration agreement in 2011. Clemons further declared that in 2011, his supervisor was “a man of few words.” Clemons’s supervisor “would routinely present [employees] with paperwork and expect [employees] to sign it right then and there before [employees] would walk away to start working.” Clemons also stated that “there was never any explanation to

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me of what was being signed, whether it was actually voluntary to sign it, or whether I could choose to take additional time to review before I signed it.” Clemons said his supervisor would usually say that something “needed to be signed.” Clemons declared, “I had no idea whether I had the right to refuse to sign [the] documents” that his supervisor presented to him.

Ultimately, the court denied Securitas’s motion to compel arbitration.

Securitas appeals.

ANALYSIS

Legal Principles

A trial court's decision to compel or deny arbitration is reviewed de novo.

Burnett v. Pagliacci Pizza, Inc., 196 Wn.2d 38, 46, 470 P.3d 486 (2020).

Washington State policy favors arbitration and state law requires that all presumptions be made in favor of arbitration. Burnett, 196 Wn.2d at 46; Zuver v. Airtouch Commc’ns, Inc., 153 Wn.2d 293, 301, 103 P.3d 753 (2004). Although we favor arbitration, it is still “the court’s responsibility to determine whether the arbitration contract is valid.” Burnett, 196 Wn.2d at 46.

Sufficient Consideration

Securitas contends that consideration was given because both parties made mutual promises to be bound by the agreement.1 Clemons asserts Securitas did not intend to be bound by the arbitration agreement.

1 Securitas also claims that Clemons manifested assent to the agreement.

Whether Clemons assented to the contract is not disputed. Clemons concedes that it was his signature on the 2011 dispute resolution agreement.

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“When the validity of an agreement to arbitrate is challenged, courts apply ordinary state contract law.” McKee v. AT&T Corp., 164 Wn.2d 372, 383, 191 P.3d 845 (2008). “Consideration is ‘any act, forbearance, creation, modification or destruction of a legal relationship, or return promise given in exchange.’ ” Labriola v. Pollard Grp., Inc., 152 Wn.2d 828, 833, 100 P.3d 791 (2004) (quoting King v. Riveland, 125 Wn.2d 500, 505, 886 P.2d 160 (1994)). The Washington courts have long defined consideration as any benefit to the promisor or detriment to the promisee. Harris v. Johnson, 75 Wash. 291, 294-95, 134 P. 1048, 1050 (1913). “Independent consideration involves new promises or obligations previously not required of the parties.” Labriola, 152 Wn.2d at 834. “Independent consideration may include increased wages, a promotion, a bonus, a fixed term of employment, or perhaps access to protected information. . . [and] involves new promises or obligations previously not required of the parties.” Labriola, 152 Wn.2d at 834 (citation omitted).

In evaluating whether independent consideration exists, Clemons was already employed by Securitas when he signed the 2011 dispute resolution agreement. Securitas did not give Clemons a bonus, increased wages, or a promotion for signing the agreement. Therefore, we analyze whether the agreement involved a new promise or obligation. Securitas asserts that there was consideration because the agreement was a new mutual promise to arbitrate. The dispute resolution agreement applied to “any dispute arising out of or related to Employee’s employment with Securitas.” Although Securitas did not sign the agreement, the plain language of the contract stated that any dispute

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related to Clemons’s employment or termination must go through arbitration. Because the presumption favors arbitration, the plain language of the agreement implies that Clemons and Securitas made mutual promises to be bound by the agreement.

Clemons asserts that Securitas’s actions after he signed the agreement suggested that Securitas did not intend to be bound by the agreement. In 2021, as part of Clemons’s work for Securitas’s client, Microsoft Corporation, Clemons signed a research project and data collection participation form. Clemons contends that he was required to sign the form, which made him liable to be sued in King County for breaching the agreement. The agreement does not mention Securitas, nor does it give Securitas the right to sue Clemons. Rather, the agreement is between Microsoft and Clemons. The form is titled “Microsoft Corporation Research Project and Data Collection Participation Form” and granted Microsoft certain rights.2 The research project and data collection participation form did not bind Securitas; this form does not support that Securitas intended to retain the right to sue Clemons over disputes, as opposed to requiring arbitration.

Procedural Unconscionability Securitas contends that the agreement was binding because the terms were clear and Clemons had the option to opt out. Clemons maintains that the

2 The agreement stated, “Most importantly, you grant Microsoft the right to use your [u]ser [d]ata, name, likeness, image, voice, and biographical information in connection with the [m]aterials and [f]eedback for all purposes of the [p]rogram including the development, improvement, testing and operation of current and future Microsoft products and services.”

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arbitration agreement was an adhesion contract, and he was not informed he had the option to opt out of the agreement.

Although we “presume arbitrability, ‘generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening [9 U.S.C.] § 2.’ ” Adler v. Fred Lind Manor, 153 Wn.2d 331, 342, 103 P.3d 773 (2004) (quoting Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996)). To determine whether a contract was procedurally unconscionable, we evaluate whether the employee lacked meaningful choice. Zuver, 153 Wn.2d at 304. We consider all facts surrounding the transaction, including “ ‘[t]he manner in which the contract was entered, whether each party had a reasonable opportunity to understand the terms of the contract, and whether the important terms [were] hidden in a maze of fine print.’ ” Zuver, 153 Wn.2d at 303 (alteration in original) (internal quotation marks omitted) (quoting Nelson v. McGoldrick, 127 Wn.2d 124, 131, 896 P.2d 1258 (1995)).

The party opposing arbitration has the burden to demonstrate that the arbitration agreement is not enforceable. Burnett, 196 Wn.2d at 46-47. “If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate. If the court finds that there is no enforceable agreement, it may not order the parties to arbitrate.” RCW 7.04A.070(2).

The parties do not dispute that the important terms were not hidden in a maze of fine print. Therefore, we look at the manner in which the contract was

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entered and whether each party had a reasonable opportunity to understand the terms of the contract.

a. Manner in Which the Contract was Entered Our Supreme Court has recognized that an arbitration agreement is procedurally unconscionable when an employer places undue pressure on the employee to sign the agreement without giving the employee a reasonable opportunity to consider its terms. Zuver, 153 Wn.2d at 306.

Securitas contends that Clemons failed to provide evidence that the agreement is procedurally unconscionable. Additionally, Securitas asserts that Clemons’s declaration is based on speculation, which is insufficient to carry his burden.

As the party opposing the arbitration, Clemons has the burden of demonstrating the agreement is unenforceable. Clemons declared that before this suit, he did not know what an arbitration agreement was and he did not remember being told that he could opt out of any agreement that he signed as part of his employment with Securitas. Securitas provided a declaration from Wigger that stated that employees had the option to opt out of the arbitration agreement and that the arbitration agreement contained provisions on the opt-out policy. However, Securitas and Wigger did not present evidence that Clemons was informed of the opt-out policy. The agreement signed by Clemons does not state that employees could opt out, nor does it say that the agreement was voluntary. And while Clemons does not remember being given the dispute resolution agreement, he does remember that he was routinely given paperwork

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to sign without any explanation about the paperwork or being told that it was voluntary to sign. We find that the evidence supports the court’s determination that the facts surrounding the transaction do not support Securitas’s assertion

that Clemons was informed that he could opt out of the agreement.

b. Whether Clemons Had a Reasonable Opportunity to Understand the Terms

The evidence supports the court’s finding that Clemons was not given a reasonable opportunity to understand the arbitration agreement because the agreement does not include language giving the employee time to review it prior to signing. In addition, it does not state that the employee had any time to review before signing. Clemons declared that his supervisor at the time would present documents that needed to be signed “right then and there before [employees] would walk away to start working.” Conversely, Wigger’s declaration makes a generalized claim that “[employees were] given the opportunity to read the acknowledg[]ment in full.”

The evidence Securitas provided does not confirm that Clemons in particular was given the opportunity to read the agreement. Wigger’s declaration is simply a statement of Securitas’s policy. Securitas does not provide evidence that supervisors were instructed to communicate to employees that they could take time to review the agreement or that Clemons’s supervisor at the time had a habit of doing so. And the arbitration agreement does not state that the employee had the opportunity to review the agreement before signing. The court, based on Clemons’s declaration, could determine that he did not have a

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reasonable opportunity to understand the agreement, seek counsel, or ask Securitas any questions or concerns.

Securitas asserts that Clemons did not remember signing the arbitration agreement, therefore Clemons’s declaration is mere speculation. That is not correct. In his declaration, Clemons recalled the process that his supervisor used to ensure that employees signed paperwork. Because equal weight is given to circumstantial evidence as direct evidence, Clemons’s declaration was appropriate evidence for the court to consider in making its determination. Rogers Potato Serv., LLC v. Countrywide Potato, LLC, 152 Wn.2d 387, 391, 97 P.3d 745 (2004). Clemons’s statement about his supervisor’s practices with employees signing paperwork, and his statement that he did not know he could opt out, combined with the court’s determination that there was a lack of any credible evidence that he was in fact informed of the ability to opt out, is sufficient evidence to support the trial court’s findings and to conclude that Clemons met his burden of proof.

Securitas also asserts that the court shifted the burden of proof when it held that Securitas did not prove that the agreement was not unconscionable. As established supra, the court determined that Clemons met his burden of proof by declaring that his supervisor routinely had employees sign paperwork without explanation before their shift started. And Securitas does not provide evidence from anyone with personal knowledge to counter Clemons’s declaration. Wigger’s declaration detailed the arbitration program and its policies; it did not detail the specific process Clemons went through when signing his arbitration

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agreement. Because Securitas did not provide evidence from anyone directly involved to contradict Clemons’s statement regarding how paperwork was routinely handled by his supervisor, the court did not err. Furthermore, the court found that Wigger’s declaration was not credible because she declared that the agreement contained an opt out and a voluntary provision. However, the agreement that Clemons signed did not contain either provision. We find the court did not err in finding that Clemons was not provided with a reasonable opportunity to understand the arbitration agreement’s terms.

Clemons did not have a reasonable opportunity to consider the terms, nor was he informed that the agreement was voluntary. Clemons did not have a meaningful choice; therefore, the agreement was procedurally unconscionable. The court did not err when it denied Securitas’s motion to compel arbitration.

We affirm.

WE CONCUR: