CLICKING AN “ACKNOWLEDGMENT BUTTON” IS NOT ENOUGH TO WAIVE YOUR RIGHT TO SUE YOUR EMPLOYER

From the nearly universal perspective of employment lawyers like the attorneys at Mashel Law who represent employees in workplace disputes, any document containing an arbitration clause forcing an employee to waive his/her right to sue their employer in court for committing wrongs such as workplace discrimination or retaliation is very bad and should be avoided whenever possible.  Although our courts will generally enforce arbitration agreements if they satisfy basic principles of contract law, a court still must be convinced the employee knowingly and voluntarily agreed to be bound by its terms. Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430, 442 (2014).  Recently, our Appellate Division in Skuse v. Pfizer, Inc., 2019 N.J. Super Lexis 7 (App. Div. 2019) was not convinced that an employee who had clicked a box on a computer screen acknowledging their receipt of an employer’s arbitration policy had agreed to be bound by the terms of the arbitration policy.

In Skuse, decided on January 16, 2019, the New Jersey Appellate Division rejected a forced arbitration agreement that would have required its employee to submit her religious discrimination claims to private binding arbitration.  This case began when Plaintiff Amy Skuse filed a lawsuit in the Superior Court of New Jersey against her former employer Pfizer alleging violations of the New Jersey Law Against Discrimination (the “NJLAD”) for religious discrimination and failure to provide a reasonable accommodation for her religious beliefs.  Skuse had been terminated from her employment as a flight attendant by Pfizer after she refused to receive a yellow fever vaccination containing animal-derived ingredients.  Skuse is a practicing Buddhist and as a part of her religious beliefs she has never received injections containing animal proteins.  After filing her NJLAD lawsuit, Defendant Pfizer sought to dismiss the case and compel the Plaintiff Skuse to submit her claims to binding arbitration.  The trial court granted the dismissal, but Plaintiff Skuse appealed and won.

On appeal the Appellate Division found the employer’s arbitration policy unenforceable and invalid where the employee merely clicked an “acknowledgment” button in a training module on the company’s arbitration policy that was mass emailed and identified as “training module” or “training activity”, and the employer did not use the verb “agree” in its click button arbitration policy acknowledgment.  The employer never asked for a physical signature from the employee and asked the court to accept the employee’s online “click” as a substitute for a formal signature to compel the employee to arbitrate. Therefore, the appellate court found that the acknowledgment procedure used by the employer fell critically short of legal requirements to obtain an employee’s voluntary, knowing, explicit and unmistakable waiver of an employee’s right to litigate in court, and fell critically short of New Jersey’s long-standing precedent under Leodori v. CIGNA Corp., 175 N.J. 293, 303 (2003) and Atalese v. U.S. Legal Services Group, L.P., supra., 219 N.J. at 447.  Leodori requires an employee’s waiver of the right to sue in court to be explicit, affirmative, and must unmistakably reflect the employee’s assent to arbitrate. Atalese requires arbitration language to be clear and unambiguous.  To comply with these requirements, the Appellate Division found that the button in the training module containing the word “acknowledgment” was not enough to meet these legal tenets.

As we have mentioned in our prior blog articles, arbitration agreements are not in employees’ best interests as they require the waiver of an employee’s statutorily protected rights to litigate and resolve their claims in open court before a jury, and instead require submission to a private arbitration whose proceedings and decisions are not readily accessible to the public.  Arbitrations are typically presided over by persons who have repeatedly been found acceptable by employers because they typically come from large defense law firm and/or big business backgrounds. Furthermore, an arbitration decision is exceedingly difficult to overturn no matter how unfair or illogical the decision may be.

Wherever and whenever possible the attorneys at Mashel Law fight forced arbitration agreements because they deprive employees of their right to have their legal claims decided at trial by a jury of their peers. If you have a legal dispute with your employer and believe you signed a forced arbitration agreement, do not hesitate to call us at (732) 536-6161 or fill out the contact form on this page so that we can review the agreement and evaluate its enforceability.  Mashel Law located in Marlboro, New Jersey are dedicated to exclusively protecting the rights of employees.