Michael Romney v. Franciscan Medical Group ( 2015 )


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  •      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    MICHAEL ROMNEY; FARON BAUER;
    and KRISTEN CHILDRESS, individually            No. 71625-5-1
    and on behalf of all other similarly
    situated,                                      DIVISION ONE
    Respondents,               PUBLISHED OPINION
    v.
    FRANCISCAN MEDICAL GROUP, a
    Washington corporation; FRANCISCAN
    HEALTH SYSTEM, a Washington
    Corporation; FRANCISCAN HEALTH
    VENTURES, a Washington corporation,
    FRANCISCAN NORTHWEST
    PHYSICIANS HEALTH NETWORK,
    LLC, a Washington corporation; and
    CATHOLIC HEALTH INITIATIVES, a
    Colorado corporation,
    FILED: February 17, 2015
    Appellants.
    Trickey, J. — Washington has a strong public policy favoring arbitration.
    Because of that clear policy, an employer-employee arbitration agreement will be
    upheld even if certain provisions of the agreement are substantively unconscionable so
    long as those provisions are severable.
    The arbitration agreement allows plaintiff-employees to seek damages claimed
    as well as any attorney fees and costs "as required by law." The arbitration agreement
    at issue here is neither procedurally nor substantively unconscionable.
    The employees' assertion that the agreement is substantively unconscionable
    because other sections of the employment contract permit the employer to seek limited
    judicial relief without affording the employees that same option is not well taken. Even
    No. 71625-5-1/2
    assuming the provisions the employees assert were unconscionable, those provisions
    are severable and do not impact the underlying agreement to arbitrate.
    We reverse the trial court's determination that the arbitration agreement was
    invalid and remand to compel arbitration.
    FACTS
    Plaintiffs/Respondents Michael Romney, M.D., Faron Bauer, M.D., and Kristen
    Childress, A.R.N.P.1 are former employees of Defendant/Appellant Franciscan Medical
    Group (FMG). Each entered into an employment contract with FMG that included
    agreements to arbitrate all employment related disputes between the parties. The
    employees brought suit against FMG for damages, statutory penalties, and equitable
    relief for wage violations on behalf of themselves and the class of physicians, medical
    assistants, and nurse practitioners. Romney and Bauer brought individual claims for
    being fired in retaliation for whistle-blowing and for losing their hospital privileges.
    Romney, Bauer, and Childress filed suit in King County Superior Court and at the
    same time requested the court to find the arbitration agreement signed by each of the
    parties to be unconscionable. FMG moved to compel arbitration. The trial court found
    the arbitration addendum unconscionable, invalidated it, and denied FMG's motion to
    compel arbitration. FMG timely appeals.
    ANALYSIS
    The arbitration agreement provides that the Federal Arbitration Act (FAA), 
    9 U.S.C. §§ 1-16
    , governs.         Section 2 of the FAA provides that written arbitration
    agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as
    1 Childress has a doctorate in nursing practices and was hired as an Advanced Registered
    Nurse Practitioner. Clerk's Papers (CP) at 111.
    No. 71625-5-1/3
    exist at law or in equity for the revocation of any contract." The effect of this section is
    to create a body of substantive federal law on arbitration that state and federal courts
    must apply to arbitration agreements that fall under the FAA's coverage. Perry v.
    Thomas, 
    482 U.S. 483
    , 489, 
    107 S. Ct. 2520
    , 
    96 L. Ed. 2d 426
     (1987). Courts must
    indulge every presumption in favor of arbitration under the FAA. Moses H. Cone Mem'l
    Hosd. v. Mercury Constr. Corp.. 
    460 U.S. 1
    , 24-25, 
    103 S. Ct. 927
    , 
    74 L. Ed. 2d 765
    (1983), superseded on other grounds by 
    9 U.S.C. § 16
    (b)(1).2
    Washington has a similar strong policy favoring arbitration. RCW 7.04A.060;
    Adler v. Fred Lind Manor, 
    153 Wn.2d 331
    , 342, 
    103 P.3d 773
     (2004). This policy does
    not, however, lessen this court's responsibility to determine whether the arbitration
    contract is valid. Hill v. Garda CL Nw.. Inc.. 
    179 Wn.2d 47
    , 53, 
    308 P.3d 635
     (2013).
    The agreement to arbitrate is a contract, the validity of which courts review absent a
    clear agreement to not do so. HjH, 
    179 Wn.2d at 53
    . Whether or not a contract is
    unconscionable is a preliminary question for judicial consideration.
    This court reviews de novo a trial court's decision to compel or deny arbitration.
    Gandee v. LDL Freedom Enters.. Inc.. 
    176 Wn.2d 598
    , 602, 
    293 P.3d 1197
     (2013);
    Satomi Owners Ass'n v. Satomi. LLC. 
    167 Wn.2d 781
    , 797, 
    225 P.3d 213
     (2009). The
    burden of demonstrating that an arbitration agreement is not enforceable is on the party
    opposing the arbitration. Zuver v. Airtouch Commc'ns. Inc.. 
    153 Wn.2d 293
    , 302, 
    103 P.3d 753
     (2004).
    2 Under the FAA, an employer-employee arbitration agreement may be enforced in state court.
    See Circuit Citv Stores. Inc. v. Adams. 
    532 U.S. 105
    , 119, 
    121 S. Ct. 1302
    , 149 L Ed. 2d 234
    (2001) (only transportation workers exempt from FAA); Allied-Bruce Terminix Cos. v. Dobson.
    
    513 U.S. 265
    , 268, 
    115 S. Ct. 834
    , 
    130 L. Ed. 2d 753
     (1995) (broad reach of FAA to contracts
    "evidencing a transaction involving commerce" constitutional under Commerce Clause).
    No. 71625-5-1/4
    Washington recognizes two types of unconscionability for invalidating arbitration
    agreements, procedural and substantive. McKee v. AT &T Corp. 
    164 Wn.2d 372
    , 396,
    
    191 P.3d 845
     (2008). Procedural unconscionabilty applies to impropriety during the
    formation of the contract; while substantive unconscionabilty applies to cases where a
    term in the contract is alleged to be one-sided or overly harsh. Nelson v. McGoldrick.
    
    127 Wn.2d 124
    , 131, 
    896 P.2d 1258
     (1995). Either is sufficient to void the agreement.
    Hill, 179Wn.2dat55.
    Procedural Unconscionability
    To determine whether an agreement is procedurally unconscionable, we
    examine the circumstances surrounding the transaction, including (1) "'the manner in
    which the contract was entered,'" (2) "'whether each party had a reasonable opportunity
    to understand the terms of the contract,'" and (3) "'whether the important terms were
    hidden in a maze of fine print,'" to determine whether a party lacked a meaningful
    choice. Nelson. 
    127 Wn.2d at 131
     (internal quotation marks and alterations omitted)
    (quoting Schroederv. Faaeol Motors. Inc.. 
    86 Wn.2d 256
    , 260, 
    544 P.2d 20
     (1975)).
    The employees argue that the agreement is procedurally unconscionable
    because they had no meaningful choice in negotiating and signing the contract.
    Romney's declaration asserts that he was never informed that he could negotiate any
    terms of either the employment agreement or arbitration addendum. In fact, he says
    that he was "strong-armed" because he was told that he could not work without a
    contract.3 Bauer's declaration states that he knew of another physician who refused to
    sign the employment agreement and was no longer employed by FMG. Childress's
    declaration asserts that she attempted to negotiate both the wages and non-compete
    3 CP at 215.
    No. 71625-5-1/5
    clauses, but was informed that the contract was not modifiable. FMG presented each
    employee with the contract and asserted that it "is what it is."4
    A contract is "procedurally unconscionable" when a party with unequal bargaining
    power lacks a meaningful opportunity to bargain, thus making the end result an
    adhesion contract. Adler. 
    153 Wn.2d at 348
    . Romney, in effect, is arguing that the
    agreement here is an adhesion contract. In determining whether a contract is one of
    adhesion, the court in Adler noted that the following factors require analysis:
    "(1) whether the contract is a standard form printed contract, (2) whether it
    was prepared by one party and submitted to the other on a take it or leave
    it basis, and (3) whether there was 'no true equality of bargaining power'
    between the parties."
    
    153 Wn.2d at 347
     (internal quotation marks omitted) (quoting Yakima County (W.
    Valley) Fire Prot. Dist. No. 12 v. Citv of Yakima. 
    122 Wn.2d 371
    , 393, 
    858 P.2d 245
    (1993).      The fact that a contract is an adhesion contract is relevant but not
    determinative. Zuver. 
    153 Wn.2d at 306-07
    . An adhesion contract is not necessarily
    procedurally unconscionable. Adler. 
    153 Wn.2d at 348
    . The key inquiry is whether the
    party lacked meaningful choice. Zuver. 
    153 Wn.2d at 305
    .
    In Zuver. our Supreme Court found that an adhesion contract ofemployment was
    not procedurally unconscionable when the employee's argument rested solely on a lack
    of bargaining power. The court stated that more was needed:
    At minimum, an employee who asserts an arbitration agreement is
    procedurally unconscionable must show some evidence that the employer
    refused to respond to her questions or concerns, placed undue pressure
    on her to sign the agreement without providing her with a reasonable
    opportunity to consider its terms, and/or that the terms of the agreement
    were set forth in such a way that an average person could not understand
    them.
    CPat215.
    No. 71625-5-1/6
    
    153 Wn.2d at 306-07
    .
    Here, the arbitration clause was not buried in fine print. The employees' reliance
    on Brown v. MHN Gov't Servs.. Inc. (MHN). 
    178 Wn.2d 258
    , 
    306 P.3d 948
     (2013), is
    misplaced. Applying California law, the Brown court found that procedural surprise was
    present because the arbitration agreement lacked clarity as to which set of American
    Arbitration Association (AAA) rules governed the arbitration. In Brown, the employer,
    MHN, itself, changed its positions several times over which set of AAA rules applied.
    Further, the Brown court noted that California had ruled that procedural
    unconscionability may exist where rules are referenced but not attached to the
    arbitration agreement. 178 Wn.2d at 268 (citing Harper v. Ultimo. 
    113 Cal. App. 4th 1402
    , 1406, 
    7 Cal. Rptr. 3d 418
     (2003)).
    No such change of position or lack of clarity is present here. It is merely that
    these are the terms of employment, which is permitted in Washington. See also Luna v.
    Household Fin. Corp. III. 
    236 F. Supp. 2d 1166
    , 1175 (W.D. Wash. 2002) ("Plaintiffs
    must demonstrate more than that the Arbitration Rider is an adhesion contract to
    support a finding that it is procedurally unconscionable."). Notably, here, the employees
    signed multiple employment contracts that contained the arbitration agreement
    addendum.
    The employees cite California cases holding that where an agreement to
    arbitrate is identified as a condition of employment, as here, the court has found them to
    be procedurally unconscionable. Jackson v. TIC—The Indus. Co.. 
    2014 WL 1232215
    ,
    at*6(E.D. Cal. 2014):
    In any event, because the agreement to arbitrate was clearly
    identified as a condition of employment with TIC, the Court finds this
    No. 71625-5-1/7
    evidence of procedural unconscionability.        See Armendariz [v. Found-
    Health Psvchcare Serv.. Inc.l. 24 Cal.4th [83,] 114-15, 
    99 Cal. Rptr. 2d 745
    , 
    6 P.3d 669
     [(2000)]; Martinez v. Master Protection Corp.. 
    118 Cal. App. 4th 107
    , 
    12 Cal. Rptr. 3d 663
     (2004) (finding an arbitration
    agreement procedurally unconscionable because it was a prerequisite of
    employment and the employee did not have an "opportunity to negotiate
    or refuse to sign the arbitration agreement").
    The Jackson court noted that even where a term is found to be a contract of adhesion it
    "'only indicates that the agreement is somewhat procedurally unconscionable, not that it
    is unenforceable.'" 
    2014 WL 1232215
    , at *6 (quoting Naria v. Trover Solutions. Inc..
    
    967 F. Supp. 2d 1332
     (N.D. Cal. 2013). The court further noted:
    Here, Plaintiffs received the arbitration agreement in conjunction with their
    applications for employment, as well as in TIC's "Jobsite and Drug and
    Alcohol Policies" document.       It is noteworthy also that each Plaintiff
    applied to and worked for TIC more than once and each time signed the
    application form with the above provisions and at least one time, but in
    some cases many times, signed the acknowledgment on the policies
    document indicating he/she had read the arbitration terms contained in the
    policies document and in the application and agreed to arbitrate claims
    related to the employment. . . . Given these circumstances, the suggestion
    that Plaintiffs were deprived by TIC of the ability to review or understand
    the arbitration agreement every single time they agreed to be bound by
    the arbitration agreement, is hard to accept.
    
    2014 WL 1232215
    , at *6. The court found the agreement unconscionable only to a
    moderate degree.
    Romney's reliance on these California cases is misplaced. California, unlike
    Washington, requires both procedural and substantive unconscionability to overturn an
    arbitration agreement. Because of this, California is more likely to find procedural
    unconscionability without also finding such procedure to be egregious. In other words,
    procedural and substantive unconscionability need not be present in the same degree
    and are considered on a sliding scale. Malone v. Superior Court. 
    226 Cal. App. 4th 1551
    , 1561, 
    173 Cal. Rptr. 3d 241
     (2014); see ajso Aiamian v. CantorCQ2e. LP. 203
    No. 71625-5-1/
    8 Cal. App. 4th 771
    , 795-96, 
    137 Cal. Rptr. 3d 773
     (2012) (without a showing of
    oppression or surprise the measure of procedural unconscionabilty is low and will be
    enforced unless the degree of substantive unconscionabilty is high).
    Other states reviewing these so called adhesion employment contracts have
    found no procedural unconscionability. See, e^g., Melena v. Anheuser-Busch. Inc., 219
    lll.2d 135, 152, 
    847 N.E.2d 99
    , 109 (2006) (rejecting appellate court's finding that an
    agreement offered on a "take it or leave it" basis was unenforceable); Motsinaer v. Lithia
    Rose-FT, Inc.. 
    211 Or. App. 610
    , 615, 
    156 P.3d 156
    , 160 (2007) (arbitration agreement
    not product of deception or compulsion even though presented as a "take-it-or-leave-it"
    contract; it is nothing more than a showing of unequal bargaining power).
    The key inquiry under Washington law is whether the employees lacked a
    meaningful choice. Here, as in other cases of employment, the employees could
    choose employment elsewhere. The arbitration clause is understandable and is printed
    in the same size font as the rest of the agreement under a bolded heading.
    Romney's contention that employees had no time to consider the contract is not
    well taken, where, as here, the employees signed multiple employment agreements
    which contained the arbitration addendum.       All three employees had a meaningful
    choice in entering the employment agreement.
    Substantive Unconscionability
    Substantive unconscionabilty exists when a provision in the contract is one
    sided. Adler. 
    153 Wn.2d at 344
    . In determining if a contractual provision is one-sided
    or overly harsh, courts look at whether the provision is "'[s]hocking to the conscience,'
    'monstrously harsh,' and 'exceedingly calloused.'" Adler. 
    153 Wn.2d at 344-45
     (internal
    No. 71625-5-1/9
    quotation marks omitted) (quoting Nelson v. McGoldrick. 
    127 Wn.2d 124
    , 131, 
    896 P.2d 1258
     (1995)). The terms of the agreement here are not so one-sided as to be labelled
    substantively unconscionable. In fact, the terms contained within the four corners of the
    arbitration agreement itself are mutual. Rather, the employees argue that the court
    should look to all provisions in the contract, including those outside the arbitration
    obligation to determine whether the agreement is one-sided.
    Injunctive and Equitable Relief
    The employees contend that the agreement to arbitrate is overly harsh because it
    requires employees to arbitrate all claims but allows FMG to seek limited relief in court.
    The employees cite to two exhibits in the contract: Exhibit F, entitled "NON
    COMPETITION AND NON-SOLICITATION," and Exhibit G, entitled "FMG SPECIFIC
    PROVISIONS" of the employment contract, which permit FMG to seek injunctive relief
    and other remedies from a court of competent jurisdiction.5 Exhibit F provides:
    Injunctive Relief.   The parties agree that damages are an inadequate
    remedy for, and that FMG would be irreparably harmed by, any breach of
    this Exhibit F and that in addition to any other remedy it may have in law
    or equity, FMG shall be entitled to an immediate injunction or other
    appropriate order to restrain any breach thereof without the necessity of
    showing or proving any actual damage sustained thereby. The parties
    further agree and stipulate that the deposit in court of the sum of one
    hundred dollars ($100.00) shall constitute sufficient undertaking in lieu of a
    bond in order to obtain such an injunction or restraining order, and that
    said deposit is not a reflection of or an attempt to predict damages.
    Exhibit G provides:
    Equitable Relief.    The parties acknowledge and agree that, since a
    remedy at law for any breach or attempted breach of all the provisions of
    this Agreement shall be inadequate, FMG shall be entitled to injunctive
    and other equitable relief, including specific performance, in case of any
    such breach or attempted breach, in addition to such other remedies as
    may exist at law. The parties waive any requirement for the securing or
    CP at 66-67.
    No. 71625-5-1/10
    posting of any bond in connection with the obtaining of any injunctive or
    other equitable relief. The parties consent to exclusive jurisdiction and
    venue in the state and federal courts sitting in County of Pierce, State of
    Washington and waive any objection to the jurisdiction of, or the venue of
    any action instituted in, such courts.
    The employees argue that while the contract requires both parties' claims in
    these circumstances be arbitrated, the employment contract retains FMG's right to seek
    injunctive relief from a court of competent jurisdiction.     Addressing an arbitration
    agreement involving a claim of substantive unconscionabilty, our Supreme Court stated:
    "Washington courts have long held that mutuality of obligation means both parties are
    bound to perform the contract's terms—not that both parties have identical
    requirements." Zuver. 
    153 Wn.2d at 317
    . Rather, as the Zuver court also stated, it is
    "the effect of [an] arbitration provision" that determines whether it "is so one-sided and
    harsh that it is substantively unconscionable." 
    153 Wn.2d at
    317 n.16, 318. In short,
    substantive unconscionabilty does not concern "whether the parties have mirror
    obligations under the agreement, but rather whether the effect of the provision is so
    'one-sided' as to render it patently 'overly harsh.'" Zuver. 
    153 Wn.2d at
    317 n.16
    (quoting Shroeder. 
    86 Wn.2d at 256
    ).
    Neither of these clauses are at issue here. Nor do they impact the outcome of
    the current matter. Assuming without deciding that these clauses were unconscionable,
    they are easily severable from the agreement. The agreement itself provides that if any
    "portion ofthis Addendum is adjudged by any court to be void or unenforceable in whole
    or in part, such adjudication shall not affect the validity and enforceability of the
    remainder of the Addendum."6 Because severance is the usual remedy for allegations
    of unconscionable provisions, and the agreement itself provides for such severability,
    6 CP at 64.
    10
    No. 71625-5-1/11
    courts are "loath to upset the terms of an agreement and strive to give effect to the
    intent of the parties." Zuver. 
    153 Wn.2d at 320
    . As in McKee. we can easily give effect
    to the provisions of the arbitration agreement if the offending clauses were excised. 
    164 Wn.2d at 403
    .      Unlike the cases cited by the employees, these provisions do not
    permeate the agreement.
    Limitation of Right to Recover Exemplary Damages
    Whenever an employer willfully and with intent to deprive an employee of any
    part of his or her wages, pays to that employee a lower wage than that which the
    employer is obligated to pay, the employee is entitled to exemplary damages of twice
    the amount of the wages unlawfully withheld. RCW 49.52.050(2), 070.
    The arbitration agreement provides that "[u]nless otherwise required by law, the
    Arbitrator shall not have the authority to award You or FMG any punitive, exemplary,
    consequential or incidental damages."7 The employees argue that the arbitration
    agreement removes their ability to recover special damages as provided by the statute.
    They contend that the arbitration agreement's use of the word "required" somehow
    lessens the impact of "shall" as used in the statute. RCW 49.52.070.8 We disagree.
    See, e.g.. State ex rel. Linn v. Superior Court for King County. 
    20 Wn.2d 138
    , 154, 
    146 P.2d 543
     (1944) (word "shall" is usually imperative or mandatory); Black's Law
    Dictionary (10th ed. 2014) ("shall" means has a duty to or more broadly is required to).
    It is clear that the damages the employees seek are available under the statutes
    upon which their claims are based and as such would also be available under the
    arbitration agreement.
    7 CP at 63.
    11
    No. 71625-5-1/12
    Confidentiality
    The employees contend the addendum is unconscionable under both McKee and
    Zuver because it requires employees to arbitrate their claims confidentially.           The
    addendum incorporates AAA's National Rules for the Resolution of Employment
    Disputes. Those rules provide:
    23. Confidentiality
    The arbitrator shall maintain the confidentiality of the arbitration and shall
    have the authority to make appropriate rulings to safeguard that
    confidentiality, unless the parties agree otherwise or the law provides to
    the contrary.
    (Emphasis added.)
    Confidential provisions in arbitration agreements have been upheld as an
    exception to the state constitutional requirement for public judicial proceedings. Barnett
    v. Hicks. 
    119 Wn.2d 151
    , 159, 
    829 P.2d 1087
     (1992). Confidentiality provisions are
    routinely found in collective bargaining agreements. Zuver. 
    153 Wn.2d at
    314 (citing
    Cole v. Burns Int'l Servs.. 
    105 F.3d 1465
    , 1477 (D.C. Cir. 1997)).
    In Zuver. the court found the confidentiality agreement unconscionable because
    [a]s written, the provision hampers an employee's ability to prove a pattern
    of discrimination or to take advantage of findings in past arbitrations.
    Moreover, keeping past findings secret undermines an employee's
    confidence in the fairness and honesty of the arbitration process and thus
    potentially discourages that employee from pursuing a valid discrimination
    claim.
    
    153 Wn.2d at 315
    . In Zuver. the court found the confidentiality and remedies provisions
    in the employment contract to be substantively unconscionable because they
    excessively favored the employer and gave the employer significant legal recourse.
    12
    No. 71625-5-1/13
    This is not the case here.     Moreover, in Zuver. the court struck the unconscionable
    provisions rather than finding the entire agreement invalid. 
    153 Wn.2d at 322
    .
    McKee involved a consumer dispute and the court found the policy of
    confidentiality to be in direct conflict with public policy, a policy particularly important
    when dealing with consumers. 
    164 Wn.2d 398
    -99.
    Here, the confidentiality clause is not so one-sided because it provides for a
    release of confidentiality when the parties otherwise agree. FMG states it will agree to a
    release of the confidentiality if Romney prefers. FMG cites to the clerk's papers as
    evidence that it offered to waive the confidentiality provision but the record does not
    bear that out. Rather, FMG stated that it prefers confidentiality and will arbitrate on a
    non-confidential basis if required to do so by the court. However, FMG's briefing before
    this court states that "[defendants have offered to agree to non-confidential
    arbitration."9 Even if the offer to release confidentiality was conditional below, FMG's
    briefing on appeal clearly indicates its consent to release confidentiality.
    The employees equate FMG's agreement to agree to no confidentiality to a
    waiver of confidentiality and argue that such a waiver is not appropriate where the court
    finds the arbitration clause objectionable.        But here, the arbitration clause is not
    objectionable. It permits the parties to agree to not apply the confidentiality clause and
    in fact prohibits such confidentiality where the law would prohibit it.10
    The employees argue that other intentional acts by the defendants are relevant
    and admissible to show motive or intent. As such, those acts would be admissible
    under the rules of the AAA.
    9Appellant's Br. at 29.
    10 See, e.g., RCW 43.70.510(4) (documents maintained by quality improvement committee not
    subject to review or disclosure except as provided in certain civil actions).
    13
    No. 71625-5-1 /14
    Fee Sharing
    The addendum provides:
    You and FMG shall equally share all costs of arbitration, including the fees
    of the American Arbitration Association and the appointed Arbitrator,
    unless you prove to the Arbitrator that the costs of the arbitration would
    effectively prevent you from pursuing your Claim; in that case FMG would
    bear all costs. If you contend that the costs of arbitration would prevent
    you from pursuing your Claim, FMG will bear the costs of the arbitration
    pending the Arbitrator's determination.t11]
    The employees contend that the addendum's fee-sharing provision is
    unconscionable under Hill v. Garda because it forces them to pay half the costs of
    arbitration. In Hjll, the employees argued that similar provisos prevented employees
    from bringing claims in an arbitral forum because unions who represent the employees
    have no funds to pay for arbitration. 
    179 Wn.2d at 56
    . There, the provision required
    that "[t]he Union and the Company shall each pay one-half (1/2) of the fee charged by
    the arbitrator, the cost of the hearing room, the reporter's fee, per diem, and the original
    copy of the transcript for the arbitrator." Hill, 
    179 Wn.2d at 57
    . But this case and the
    other cases cited by the employees all involve mandatory fee splitting provisions.12
    Here, the arbitration clause specifically provides that where a plaintiff asserts that they
    cannot afford arbitration, FMG shall bear the costs of arbitration pending a
    determination by the arbitrator. The employees have made that claim so the arbitration
    will proceed with FMG bearing the costs until the arbitrator makes that determination.
    Furthermore, the issue of affordability of arbitration has been addressed in
    several instances by this court and has been determined to be an issue that is "resolved
    11 qp at 53
    12 Al-Safin v. Circuit Citv Stores. Inc., 
    394 F.3d 1254
    , 1261 (9th Cir. 2005); Luna v.
    Household Fin. Corp. III. 
    236 F. Supp.2d 1166
    , 1171-72 (W.D. Wash. 2002); Gandee,
    
    176 Wn.2d at 602, 605
    ; Adler. 
    153 Wn.2d at 338, 353
    ; In re Checking Account
    Overdraft Litig.. 
    685 F.3d 1269
     (11th Cir. 2012).
    14
    No. 71625-5-1/15
    case-by-case on the basis of specific, factual information rather than a per se rule."
    Walters v. AAA Waterproofing. Inc.. 
    151 Wn. App. 316
    , 327, 
    211 P.3d 454
     (2009).
    The employees' contention that the agreement limits their right to recover
    attorney fees under the statute is without merit. The agreement specifically provides:
    "Except as otherwise reouired bv law, each party shall bear his/her own attorneys' fees
    and other costs associated with any Claims between the parties."13 Under any reading
    of that sentence, the employees would be entitled to attorney fees under RCW
    49.52.070, which provides for an award of reasonable attorney fees and costs to a
    successful plaintiff-employee.
    Parties Not Signatories
    On appeal, the employees argue that the arbitration agreement attempts to bind
    other parties who are not signatories to the actual agreement. This was not addressed
    by the trial court below. However, for the sake of judicial economy, we address it here.
    A party may consent to arbitration without signing an arbitration clause, just as a
    party may consent to the formation of a contract without signing a written document.
    Fisser v. Int'l Bank. 
    282 F.2d 231
    , 233 (2d Cir. 1960). Arbitration agreements may
    encompass non-signatories under contract and agency principles. Comer v. Micor. Inc.,
    
    436 F.3d 1098
    , 1101 (9th Cir. 2006); Powell v. Sphere Drake Ins.. P.L.C.. 
    97 Wn. App. 890
    , 895, 
    988 P.2d 12
     (1999). For arbitration purposes, employees are agents of the
    employer if the parties intended the agreement to apply to them or if the alleged liability
    arises out of the same misconduct alleged against the employer. McCarthy v. Azure, 
    22 F.3d 351
    , 357-58 (1st Cir. 1994).
    13 CP at 63 (emphasis added).
    15
    No. 71625-5-1/16
    Where claims are based on the same set of facts and inherently inseparable, the
    court may order arbitration of claims against the party even if that party is not a party to
    the arbitration agreement. Townsend v. Quadrant Corp., 
    153 Wn. App. 870
    , 889, 
    224 P.3d 818
     (2009), aff'd on other grounds by 
    173 Wn.2d 451
    , 
    268 P.3d 917
     (2012).
    Accordingly, we reverse the trial court and remand for an order compelling
    arbitration.
    T/x "ey , J
    WE CONCUR:
    V^JL'.^ \r*$9 e>, f^K
    CD
    GO
    16