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When the Law Does (and Does Not) Require an ‘Unmistakable’ and ‘Affirmative’ Act From You to Signal Your Assent to an Arbitration Agreement in New Jersey

Arbitration agreements can be a common part of workplace life. As with any potentially legally binding contractual agreement, it is extremely important to understand the exact legal ramifications of what you’re signing before you do anything. It is also important to understand exactly when your employer can claim that you’ve assented to the arbitration agreement by doing nothing. When it comes to these and other legal issues that can impact you as a worker, you should be sure you have a skilled New Jersey employment attorney to provide you the advice and advocacy you need.

One case originating in Union County provided some useful information on arbitration agreements, as well as on what does (or doesn’t) qualify as a valid passive assent to an agreement. The case followed a fact pattern that is probably similar to what occurs at many workplaces. The employer decides to establish an optional arbitration agreement. The employer sends the affected employees an email containing the policy. The email explains that the policy is not mandatory and includes instructions for opting out of the arbitration agreement. The email also includes a requirement that the employee acknowledge having reviewed the agreement.

In the summer of 2017, the assistant store manager at a wireless employer’s Union store filed a lawsuit alleging that the employer had engaged in racial and gender discrimination. The employer then asked the trial court to order the case to arbitration. The employer asserted that it was entitled to an order compelling arbitration because the manager had never completed the “opt out” requirements. According to the employer, it had asked the manager to acknowledge reviewing the agreement. Allegedly, the manager initially did nothing, but eventually acknowledged reviewing the agreement. She allegedly took no further action.

The employer’s contention, in effect, was that the manager, by not taking action, had pro-actively demonstrated an intent to waive her right to a civil trial and instead be bound to resolve her dispute through arbitration. The judge ruled against the employer, however, because the law in New Jersey does not work that way. The state’s Supreme Court ruled in 2003 that, in order for a court to find that an employee waived her rights and acquiesced to an arbitration provision, the employer needed proof of some “unmistakable indication that the employee affirmatively had agreed to arbitrate.” A different court ruling made it clear that an employee’s acknowledgement of receipt or acknowledgement of review of an arbitration agreement is not the same as an unmistakable affirmative act signifying agreement to the terms of the arbitration provisions.

In other words, the employer did not have proof that the manager agreed to the agreement because the acknowledgement of review wasn’t enough by itself.

Sometimes doing nothing or very little can still constitute assent to the agreement

There are ways in which your employer can obtain your valid consent to an arbitration agreement with very little or no overt action from you, but those facts were not present in this dispute. If an employer makes it clear that your continued presence at your job is a demonstration of your agreement to the provisions, then your continuing to show up at work would be a valid assent. (In the manager’s case, however, the employer made it abundantly clear that the arbitration agreement was completely optional.) An employer can also gain assent through something as simple as getting the employee to check an “I agree” box in the email about the arbitration agreement. (In the manager’s case, the only thing the employee had to check was a box for acknowledging review of the arbitration agreement.) In other words, it is very important to tread with extreme care when your employer presents you with an arbitration agreement, as the actions you take may have a profound impact on your rights, even if those actions were very simplistic or minor.

For answers to your questions about your employer’s arbitration agreement, its impact on any potential discrimination or harassment claim you might have, and your options under New Jersey law, talk to the skilled New Jersey discrimination attorneys at Phillips & Associates. Our attorneys are here to help you understand your options and pursue the positive results you need. 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:

Federal Judge’s Ruling Allows New Jersey Employee to Retain $340K Sex Discrimination Damages Award, New Jersey Employment Lawyer Blog, Aug. 23, 2018

North Jersey Jury Awards an African-American Police Lieutenant $1.2M After He Was Improperly Denied a Promotion, New Jersey Employment Lawyer Blog, April 25, 2018


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