Many of us have been there. You’ve just accepted a new job and now you’re going through the “new hire” procedures. You are probably asked to fill out, review and sign many documents. You may also be required to complete certain computerized or online tasks as you get started. Most people probably think of these things as perfunctory and don’t pay exceptionally close attention to the details. But the details can matter a great deal, especially should you eventually find yourself having suffered discrimination or harassment on the job. If you are in that position of needing to pursue a discrimination or harassment case, be sure you have skilled New Jersey employment counsel on your side.
One specific area where these kinds of details matter relates to the arbitration agreement you may have signed with your new job. Take, as an example, the case of a West Trenton-based flight attendant, A.S. When the flight attendant began her employment with a major New Jersey-based pharmaceutical company, she was required to complete something called a “training module.” That activity went over various employer policies, including the company’s mandatory arbitration agreement, which was laid out across a series of slides on a computer screen. One screen referred the employee to an internet link that provided the full text of the policy. A separate email provided a series of Frequently Asked Questions and answers to them (FAQs.)
One of the slides contained an interactive button that asked employees to “acknowledge” the policy. Even if the employee did not acknowledge the agreement, she would be “deemed” to have consented to it if she continued working for the employer for 60 or more days, another slide explained.
For several years, A.S. probably gave little thought to that slideshow. For half a decade, A.S. allegedly flew without any major issues. Even though all flight attendants were supposed to receive a vaccine for yellow fever in order to fly, A.S. flew without one. (A.S. faithfully practiced a type of Buddhism that prohibited taking in animal protein in any way, including via injection. Because all yellow fever vaccines have animal-derived ingredients in them, A.S. never underwent the injection.)
In the spring of 2017, though, the employer allegedly began pressuring the flight attendant to get the vaccine. She never did and the employer terminated her in August 2017. The flight attendant sued for religious discrimination under the Law Against Discrimination, and the employer asked for the case to be decided through arbitration.
An explicit and unmistakable assent to the policy was absent
The Appellate Division concluded that this employer’s arbitration agreement wasn’t enforceable, which meant that the flight attendant was allowed to go forward seeking relief in court. The court ruled that the employer’s method for obtaining employees’ agreement to the policy was both “oblique” and inadequate. New employees like A.S. were never required to sign, either physically or electronically, the policy. The click-box contained in the training module slideshow only asked the employee to acknowledge the policy, not to agree to it.
This practice is not sufficient under New Jersey law, according to the court. New Jersey requires “an explicit, affirmative agreement that unmistakably reflects the employee’s assent” and the agreement’s language absolutely must be clear and unambiguous in stating that the employee “is choosing to arbitrate disputes rather than have them resolved in a court of law.”
This employer never obtained A.S.’s “explicit and voluntary agreement to forego the court system and submit her discrimination claims against her former employer and its officials to binding arbitration.” As a result, she was not required to arbitrate and was free to pursue her day in court.
Sometimes, little details can yield big successes. That’s why it pays to have legal counsel who knows how best to “sweat the small stuff.” The knowledgeable New Jersey employment attorneys at Phillips & Associates are here to give you the advice, counsel and advocacy you need for your discrimination or harassment case. Contact us to find out more about your options. Reach us online or at (609) 436-9087 today to set up a free and confidential consultation and to find out how we can help you.
More blog posts:
How the Omission of Essential Terms Allowed a New Jersey Employer to Escape Arbitration and Pursue Her Age Discrimination Case in Court, New Jersey Employment Lawyer Blog, Oct. 26, 2018
What You Need to Avoid Arbitrating Your New Jersey Discrimination or Harassment Case, Even if You Signed an Arbitration Agreement with Your Employer, New Jersey Employment Lawyer Blog, Oct. 19, 2018