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Continued Employment May Constitute Assent to Emailed Agreements

Once again, but not surprisingly, an arbitration agreement conveyed by an employer and confirmed by an employee via email has been upheld by the New Jersey courts.

In a recent decision, Jasicki v. Morgan Stanley Smith Barney LLC, the New Jersey Appellate Division affirmed the motion court’s dismissal of an employee’s claims of sexual harassment, compelling arbitration. Holding the employee agreed to the company’s mandatory arbitration program communicated via a company-wide email by (1) opening the email, (2) failing to opt-out of the arbitration program, and (3) continuing her employment, the Appellate Division validated email arbitration agreements in the employment context under these circumstances, despite the employee’s assertion she never actually read the email. In doing so, the Appellate Division reinforced our courts’ approval of these less traditional and more controversial vehicles for securing employee assent to arbitration agreements. In short, quoting its decision in Jaworski v. Ernst & Young, the Appellate Division wrote: “An email, properly couched, can be an appropriate medium for forming an arbitration agreement.”

The plaintiff employee became employed by Morgan Stanley in 2011. In September 2015, the employer sent a firm-wide email describing an expansion in their mandatory arbitration policy (the CARE Arbitration Program) for workplace claims. The email’s subject line referred to the new arbitration program and the body of the email expressly stated, among other things, that the employee’s decision to continue working and not opt-out would constitute assent to the program. The email provided: “If you remain employed and do not timely complete, sign and submit an effective CARE Arbitration Program Opt-Out Form, the [f]irm’s records will reflect that you have consented and agreed to the terms of the Arbitration Agreement and the arbitration provisions of the Care Guidebook.” The employee did not complete and return the opt-out form and continued with her employment.

In May 2019, the employee filed a three-count complaint under the New Jersey Law Against Discrimination alleging disparate treatment and hostile work environment, sexual harassment and discrimination, and retaliation. She alleged she endured sexual harassment and after rejecting the advances of her supervisor, he retaliated against her.

The employee argued the mere receipt of an email, without further action, could not bind her to arbitrate her claims, and she asserted she never actually reviewed the email. She also argued the email’s references to the arbitration policy were not sufficient to form an express or implied contract. The employee did not dispute that she did not return the opt-out form and continued her employment after receiving the email. In short, the employee submitted that she never truly assented to the CARE Arbitration Program through her actions or inactions and, thus, did not waive her right to assert her legal claims against the company in court. Read from source….