Court Finds Emailed Arbitration Agreement Unenforceable

On January 16, 2019, the Superior Court of New Jersey, Appellate Division held in Skuse v. Pfizer, Inc., that Pfizer’s use of a computer training program emailed to employees was inadequate to obtain the employees’ agreement to arbitrate disputes.

Pfizer emailed its employees what it called a "training module," "activity," or "course,” describing the company's mandatory arbitration policy in a series of slides on the employee’s computer screen, including a "Resource" link to the full text of the policy. In a different email, Pfizer sent a link to Frequently Asked Questions about the arbitration policy.

The module asked the employee to "acknowledge" it by clicking a button on the screen, and stated that if the employee did not click the acknowledgement, but continued to work for the company for 60 or more days, they would be "deemed" to be bound by the arbitration policy.

The court cut to the chase in the first sentence of its opinion, stating, “This case exemplifies an inadequate way for an employer to go about extracting its employees' agreement to submit to binding arbitration for future claims and thereby waive their rights to sue the employer and seek a jury trial.”

The court held that the procedure used by Pfizer did not “yield the valid personal agreement of an employee to give up his or her statutorily protected rights to litigate claims against an employer in a public forum and seek a trial by jury,” because it fell short of the legal requirements set forth by the New Jersey Supreme Court that a valid waiver of an employee’s statutory rights “results only from an explicit, affirmative agreement that unmistakably reflects the employee's assent,” and that the words of the arbitration agreement must be clear and unambiguous that the employee is choosing to arbitrate rather than have disputes resolved in court.

Because the plaintiff never expressed her “explicit and unmistakable voluntary agreement to forego the court system and submit her discrimination claims against her former employer and its officials to binding arbitration,” the court reversed the trial court’s order dismissing the case and compelling arbitration, and remanded for further proceedings.