Skuse v. Pfizer, Inc., No. A-3027-17T4 (N.J. Super. Ct. App. Div. Jan. 16, 2019) [click for opinion]

In November 2017, Plaintiff Amy Skuse (“Skuse”) filed a complaint against her former employer Pfizer, Inc. (“Pfizer”), and several other Pfizer officials, alleging religious discrimination. Pfizer required flight attendant employees, like Skuse, to receive yellow fever vaccinations. When Skuse, a practicing Buddhist, refused to receive the vaccine, Pfizer put Skuse on leave and ultimately terminated her employment.

In response to Skuse’s lawsuit, Pfizer filed a motion to dismiss the action and compel arbitration. Pfizer claimed that Skuse electronically received and completed a training module presenting the company’s mandatory binding arbitration policy, and that her continued work for the company constituted an assent to be bound by the policy. Skuse argued that she never expressed an agreement to the arbitration policy and did not waive any of her rights to litigate against Pfizer under the State’s anti-discrimination and employment laws.

Pfizer used company email to disseminate company policies and announcements, including the training module in question. The emails for this training module contained a link that an employee was expected to click, in order to launch the module through a portal used commonly for assigned trainings. The module included a link to the Arbitration Policy itself, and at the end, required a “click” to “acknowledge” that the employee had received the information.

The arbitration terms were nonnegotiable, a condition of employment, and included a waiver of rights to bring certain claims in front of a court or jury. The terms further stated that even if an employee did not “click” to “acknowledge,” the Agreement would become effective anyway, sixty days after receipt. In that case, the employee would be deemed to have consented to, ratified and accepted the Agreement through acceptance of and/or continued employment with Pfizer.

In considering whether the parties entered into a valid mutual agreement to arbitrate Skuse’s claims, the court recounted the New Jersey Supreme Court’s longstanding precedent that an employee’s waiver of statutory rights through an employer’s binding arbitration policy results only from an “explicit, affirmative agreement that unmistakably reflects the employee’s assent.” The court found that such an explicit, affirmative agreement had not occurred here.

The court first focused on the fact that the binding arbitration agreement, including the waiver of rights, was listed as a “training module,” noting that “obtaining an employee’s binding waiver of his or her legal rights is not a training exercise,” and “it is not on a par with routine or mundane training subjects.”

Second, the court analyzed the “click box” method of asking an employee to “acknowledge” that he or she had received the information. The court found that the “click box” form, combined only with an acknowledgment of receipt of the arbitration policy, was not enough, and that an employee instead needed to manifest an “explicit, affirmative agreement” that reflects that he or she “unmistakably” assented to it. The court found that the click box format and “acknowledge” terminology lacked “formality when that click was not tethered to and spotlighted with a clear and proximate direction that, by clicking the button, the employee is knowingly agreeing to waive his or her legal rights.”

The court suggested remedies that would help the Pfizer cure the deficiencies identified, including: (1) more accurately conveying that Pfizer is seeking an agreement and a waiver of rights, instead of calling the process a “training” activity; and (2) including terms such as “agree” or “agreement” in a click box, when seeking an employee’s legally binding response.

The court then turned to the terms of Pfizer’s arbitration policy that stated that an employee was bound by the policy if he or she continued to work at the company for more than sixty days after receiving the arbitration agreement. The court found that Pfizer’s proclamation regarding the sixty-day provision amounted to a “consent by default” and was legally insufficient to satisfy the requirements set forth by the New Jersey Supreme Court, which require explicit and unmistakable consent.

Finally, the court addressed an unpublished opinion by a federal district judge in Pennsylvania, where Pfizer’s arbitration policy was upheld based on an employee’s continued service for more than sixty days after receiving the training module. The court noted that it would not follow the Pennsylvania opinion and instead would continue to look to New Jersey law, which established the requirement for explicit and unmistakable expressions of mutual assent to arbitrate.

A version of this post originally appeared in the March 2019 edition of Baker McKenzie’s International Litigation & Arbitration Newsletter, which is edited by David Zaslowsky and Grant Hanessian.