DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

AMS STAFF LEASING, INC.,

Appellant,

v.

ROBERT F. TAYLOR and DIAMOND K RESOURCES, LLC, a foreign 

limited liability company,

Appellees.

No. 4D14-1387

[January 7, 2015]

Appeal of non-final order from the Circuit Court for the Nineteenth 

Judicial Circuit, St. Lucie County; Dwight L. Geiger, Judge; L.T. Case No. 

562013CA001916 (DC).

Amy L. Baker and Henry W. Jewett II of Rissman, Barrett, Hurt, 

Donahue & McLain, P.A., Orlando, for appellant.

No appearance for appellees.

TAYLOR, J.

AMS Staff Leasing, Inc., appeals a non-final order denying its motion 

to abate the action and compel arbitration. Because we find that the 

agreement to arbitrate was valid, we reverse.

On December 18, 2012, the plaintiff, Robert Taylor, started working as 

a truck driver for Diamond K Resources, LLC. The plaintiff was hired by 

a supervisor at Diamond K after providing his driver’s license and social 

security card. The plaintiff testified that he did not fill out any paperwork 

that day.

When the plaintiff arrived at a Florida job site on the morning of 

December 21, 2012, a supervisor gave him a written application for 

employment with AMS, an employee leasing company based in Dallas, 

Texas. The supervisor told the plaintiff and the other drivers to fill out the 

form, backdate it to December 19, 2012, and return it within five minutes 

or else they could “go home” and would be fired. The plaintiff filled out the 

paperwork on the hood of a truck under a parking lot light. The plaintiff 
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signed the agreement, but he did not read it because he did not have his

reading glasses with him.

The agreement contains an arbitration clause that requires any dispute 

with AMS to be arbitrated in Texas:

I agree that my sole recourse for resolving any dispute with 

AMS arising under my employment, including but not limited 

to wage claims, shall be to arbitrate such dispute. Such 

arbitration shall be pursuant to the arbitration laws of the 

State of Texas and the rules, then obtaining, of the American 

Arbitration Association. Venue of any action shall be in Dallas 

County, Texas. AMS is based in Dallas, Texas, and Applicant 

acknowledges that this Agreement is to be partially performed 

in Dallas, Texas.

In January 2013, the plaintiff was injured in the course and scope of 

his employment. The plaintiff’s employment was terminated shortly 

thereafter.

The plaintiff then sued AMS and Diamond K for wrongful termination, 

claiming that the reason he was terminated was because he made a valid 

claim for workers’ compensation.

AMS made a special limited appearance in the action and filed a Motion 

to Abate and Compel Arbitration. The court held a hearing on the motion 

and allowed the plaintiff to give testimony concerning the circumstances 

surrounding the execution of the arbitration agreement.

Counsel for the plaintiff argued that: (1) AMS waived enforcement of the 

agreement by not seeking arbitration in the workers’ compensation case; 

(2) the arbitration agreement violated public policy because it failed to 

exempt workers’ compensation matters and because it required a Florida 

hourly-wage worker to travel to Texas to arbitrate a claim that his 

termination violated the workers’ compensation law, and (3) the arbitration 

agreement was unconscionable and was procured under duress.

The trial court ultimately entered an order denying AMS’s motion to 

compel arbitration. The trial court made factual findings consistent with 

the plaintiff’s testimony. Further, the trial court ruled that the arbitration 

provision was invalid because: (1) it did not exclude workers’ compensation 

proceedings from its scope, and (2) it violated public policy by requiring an 

hourly wage employee to arbitrate an employment dispute in a state other 

than Florida. This appeal followed.
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“The standard of review for denial of a motion to compel arbitration is 

de novo.” Shetty v. Palm Beach Radiation Oncology Assocs.-Sunderam K. 

Shetty, M.D., P.A., 915 So. 2d 1233, 1234 (Fla. 4th DCA 2005).

“Under both federal statutory provisions and Florida’s arbitration code, 

there are three elements for courts to consider in ruling on a motion to 

compel arbitration of a given dispute: (1) whether a valid written agreement 

to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether 

the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So. 2d 

633, 636 (Fla. 1999). It is for the court, not the arbitrator, to determine 

whether a valid written agreement to arbitrate exists. Shotts v. OP Winter 

Haven, Inc., 86 So. 3d 456, 471 (Fla. 2011). Likewise, “it is incumbent on 

the court, not the arbitrator, to determine whether an arbitration 

agreement violates public policy.” Id.

“[A]n agreement to arbitrate future disputes in another jurisdiction is 

outside the authority of the Florida Arbitration Code . . . and . . . renders 

the agreement to arbitrate voidable at the instance of either party.”

Damora v. Stresscon Int’l, Inc., 324 So. 2d 80, 82 (Fla. 1975). If, however, 

the Federal Arbitration Act (“FAA”) applies to the agreement, a Florida 

court must enforce a valid arbitration clause which provides for arbitration 

in a foreign state. Default Proof Credit Card Sys., Inc. v. Friedland, 992 So.

2d 442, 444 (Fla. 3d DCA 2008).

The FAA applies to “a transaction that, in fact, involves interstate 

commerce,” even if the parties did not intend the transaction to have an 

interstate commerce connection. Mintz & Fraade, P.C. v. Beta Drywall 

Acquisition, LLC, 59 So. 3d 1173, 1175 (Fla. 4th DCA 2011) (quoting 

Default Proof, 992 So. 2d at 445). The phrase “interstate commerce” is to 

be interpreted broadly. Id.

Here, the employment transaction involved interstate commerce. 

Although the plaintiff worked in Florida, he entered into an employment 

agreement with a Texas employee leasing company. In light of the broad 

interpretation of “interstate commerce” under the case law, the 

employment agreement in this case involves interstate commerce and is 

thus governed by the FAA.

The reasons the trial court gave for finding the arbitration agreement 

invalid are not legally sound. First, it does not violate public policy for an 

agreement to require arbitration of a workers’ compensation retaliation 

claim, as arbitration of such a claim does not defeat the remedial purpose 

of the statute. See Audio Visual Innovations, Inc. v. Spiessbach, 119 So. 
4

3d 522, 525 (Fla. 2d DCA 2013). A claim for workers’ compensation 

benefits is distinct from a cause of action for retaliatory discharge under 

section 440.205, Florida Statutes (2012).

The arbitration agreement is valid as applied to the retaliation claim in 

this case. To be sure, the arbitration provision in this case did not 

specifically exclude claims for workers’ compensation benefits from its 

scope, whereas the arbitration provision in Audio Visual did expressly 

exclude workers’ compensation claims. But the absence of such an 

exclusion in this case does not render the arbitration provision invalid. 

Here, AMS never sought to compel arbitration of the plaintiff’s claim for 

workers’ compensation benefits. The only claim that AMS sought to 

arbitrate is the plaintiff’s claim in the underlying lawsuit for retaliatory 

discharge in violation of section 440.205, Florida Statutes. Arbitration of 

such a claim is not inconsistent with public policy.

The trial court’s second reason for invalidating the arbitration 

agreement also fails to withstand careful scrutiny. Here, the agreement is 

governed by the FAA, not Florida’s arbitration code. Thus, because the 

FAA governs the agreement, the fact that the agreement provides for 

arbitration in another state is not a ground for invalidating it. See, e.g., 

Default Proof, 992 So. 2d at 444.

Further, AMS has not waived its right to arbitrate the plaintiff’s claim 

for retaliatory discharge. Although the trial court did not rely on waiver 

as a ground for denying the motion to compel arbitration, the plaintiff did 

argue below that AMS waived the right to arbitrate the claim. “Waiver of 

the right to arbitration results from active participation in a lawsuit or 

from taking action inconsistent with that right.” O’Keefe Architects, Inc. v. 

CED Constr. Partners, Ltd., 944 So. 2d 181, 185 n.4 (Fla. 2006). The 

determination of whether there has been a waiver does not necessarily 

depend on the timing of the motion to compel arbitration, but rather on 

the prior taking of an inconsistent position by the moving party. Miller & 

Solomon Gen. Contractors, Inc. v. Brennan’s Glass Co., Inc., 824 So. 2d 288, 

290 (Fla. 4th DCA 2002).

Here, AMS has not taken any action that is inconsistent with its right 

to arbitrate the plaintiff’s retaliatory discharge claim. The first action that 

AMS took in the lawsuit was filing its motion to compel arbitration. AMS 

has not actively participated in this lawsuit or otherwise taken any action 

inconsistent with the right to arbitrate. Furthermore, the fact that AMS 

did not attempt to arbitrate the plaintiff’s claim for workers’ compensation 

benefits—a separate claim which AMS might not have been legally entitled 
5

to arbitrate in the first place—did not somehow operate as a waiver of its 

right to arbitrate the retaliation claim in this case.

Finally, the plaintiff did not establish any defenses to arbitration, such 

as duress or unconscionability. The party seeking to avoid arbitration 

bears the burden of proving a contractual defense to enforcement of the 

arbitration agreement. See Spring Lake NC, LLC v. Beloff, 110 So. 3d 52, 

54-55 (Fla. 2d DCA 2013).

One possible defense to arbitration is duress. “[D]uress is a condition 

of mind produced by an improper external pressure or influence that 

practically destroys the free agency of a party and causes him to do an act 

or make a contract not of his own volition.” Francavilla v. Francavilla, 969 

So. 2d 522, 524–25 (Fla. 4th DCA 2007) (citations and internal quotation 

marks omitted). To establish duress, two factors must be proven: (1) that 

the act was effected involuntarily and was not an exercise of free choice or 

will, and (2) that this condition of mind was caused by some improper and 

coercive conduct by the other side. Id. at 525. “Duress involves a dual 

concept of external pressure and internal surrender or loss of volition in 

response to outside compulsion.” Id. (citation and internal quotation 

marks omitted). Moreover, as a general rule, a contract “may not be set 

aside on the basis of duress or coercion unless the improper influence 

emanated from one of the contracting parties—the actions of a third party 

will not suffice.” Vitakis-Valchine v. Valchine, 793 So. 2d 1094, 1096 (Fla. 

4th DCA 2001).

Even without considering AMS’s argument that any alleged coercion 

came from a third party,1 we find that there was insufficient evidence to 

establish duress. The only evidence of a “threat” in this case was the threat 

that the plaintiff’s services were not needed if he did not sign the 

employment contract. This is insufficient to constitute duress. See

Restatement (Second) of Contracts § 176 cmt. a (1981) (“An ordinary offer 

to make a contract commonly involves an implied threat by one party, the 

offeror, not to make the contract unless his terms are accepted by the 

other party, the offeree. Such threats are an accepted part of the 

bargaining process.”). Moreover, the plaintiff never testified that the

allegedly coercive conduct induced his assent to the employment 

agreement; nor did he testify that but for the allegedly coercive conduct, 

1 For purposes of our analysis, we will simply assume for the sake of argument 

that the Diamond K supervisor was acting as an agent on behalf of AMS when 

the supervisor had the plaintiff sign the AMS employment agreement, and that 

the supervisor’s conduct should be imputed to AMS.
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he would have demanded removal of the arbitration provision or otherwise 

would have avoided signing the agreement.

Another possible contract defense is unconscionability. To support a 

finding of unconscionability sufficient to invalidate an arbitration clause, 

the party opposing arbitration must establish both procedural and 

substantive unconscionability. Premier Real Estate Holdings, LLC v. Butch, 

24 So. 3d 708, 711 (Fla. 4th DCA 2009). “Procedural unconscionability 

relates to the manner in which the contract was made and involves issues 

such as the parties’ relative bargaining power and their ability to know and 

understand disputed contract terms.” FL-Carrollwood Care, LLC v. 

Gordon, 72 So. 3d 162, 165 (Fla. 2d DCA 2011). Substantive 

unconscionability, by contrast, “considers whether the contract terms 

themselves are so outrageously unfair as to shock the judicial conscience.” 

Id. Procedural and substantive unconscionability are assessed 

independently. Id.

We turn our attention first to substantive unconscionability. The 

plaintiff presented no evidence that the arbitration agreement was 

substantively unconscionable. A substantively unconscionable agreement 

is one that “no man in his senses and not under delusion would make on 

the one hand, and as no honest and fair man would accept on the other.” 

Hume v. United States, 132 U.S. 406, 411 (1889). An example of a 

substantively unconscionable agreement is one that deprives a claimant 

of an effective way to vindicate a statutory cause of action in the arbitral 

forum. See Romano ex rel. Romano v. Manor Care, Inc., 861 So. 2d 59, 61-

64 (Fla. 4th DCA 2003) (finding that arbitration agreement was 

substantively unconscionable because it did not provide adequate 

mechanisms for vindication of patient’s statutory rights under Nursing 

Home Resident’s Rights Act).

Here, the arbitration agreement was not so outrageously unfair as to 

shock the judicial conscience. The agreement did not deprive the plaintiff 

of any statutory cause of action. As discussed above, arbitration of a 

retaliatory discharge claim does not defeat the remedial purpose of section 

440.205, Florida Statutes. Thus, we conclude that the arbitration 

agreement was not substantively unconscionable. Because the arbitration 

provision was not substantively unconscionable, the plaintiff’s 

unconscionability defense fails irrespective of whether the provision was

procedurally unconscionable.

Based on the foregoing, we reverse and remand with instructions for 

the trial court to grant the motion to compel arbitration.
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Reversed and Remanded.

GROSS and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.