Co-Heads of S&C’s Employment Law Group Julia Jordan, Diane McGimsey and Ann-Elizabeth Ostrager authored an article for Law360 discussing a recent decision from the U.S. Court of Appeals for the Ninth Circuit highlighting that email distribution of employment agreements does not relieve an employer of its burden to prove contract formation.
The authors describe the ruling in Rickes v. Thermo Fisher, where the court affirmed the denial of Thermo Fisher’s motion to compel a former employee’s claims to arbitration, holding that the company had not established that the employee assented to its arbitration agreement. During the time of employment, the company had sent the employee multiple emails concerning the agreement, but its records did not show that he opened the emails, reviewed the agreement or otherwise manifested assent.
“The decision shows that evidence that an email reached an employee’s inbox may not, without more, establish that the employee had notice of, and assented to, the agreement that was contained in, or linked from, the email,” the authors write. To ensure proof that employees receive notice and manifest assent in an agreement, “Employers should consider using an electronic process that records when an employee opens the agreement and requires an affirmative response, such as acknowledging receipt, signing electronically or selecting an ‘I agree’ button.”
Partner Tracy Richelle High and associate Avalee M. Statner contributed to the article.
Read the full Law360 article: “9th Circ. Ruling Raises Bar for Arbitration Pacts via Email”