As employers increasingly use e-mail as a tool to negotiate employment agreements, it is important to be aware that e-mails can modify the terms of an employment agreement, even when the agreement requires that modification be made in writing signed by the parties. The Supreme Court of the State of New York, Appellate Division, First Department recently held that e-mails constituted “signed writings” and served to modify an employment agreement even though the employment agreement required that any modifications be in writing. Stevens v. Publicis, S.A., 50 A.D.2d 253, 854 N.Y.S.2d 690 (1st Dep’t 2008).
The First Department viewed the typed name of the sender at the bottom of an e-mail message as sufficient to serve as a “signature.” These e-mails satisfied the statute of frauds because the sender’s name represented the author’s “intent to authenticate” its contents. This is true even for e-mails with an automatic signature block at the bottom. In light of the Stevens decision, employers should consider adding disclaimers to e-mail correspondence concerning contract negotiations or existing contracts that make clear the e-mail does not reflect an intent to amend the agreement or otherwise constitute a contractual obligation.