On January 16, 2019, the New Jersey Appellate Division issued a published decision reversing a trial court order which had compelled a plaintiff to submit her case to binding arbitration. This was another big victory by Alan H. Schorr of Schorr & Associates, P.C. in his continuing fight to protect New Jersey employees from employers who try to force employees to waive their statutory rights to sue and to have a trial jury for their discrimination claims.
You can read the Associated Press story here.
Amy N. Skuse was a flight attendant for Pfizer, Inc. Pfizer had mandated that Ms. Skuse receive a yellow fever vaccination. Ms. Skuse is a practicing Buddhist who refused the vaccine for religious reasons because the vaccine contains animal-derived ingredients. She requested a religious accommodation to be excused from receiving the vaccine. She alleges that she had a “yellow card” exemption from the World Health Organization that permitted her to enter all countries without a yellow fever vaccination, and therefore, that there was no legitimate non-discriminatory reason for denying her request for accommodation. She alleges that Pfizer nevertheless refused to accommodate her and instead terminated her employment.
Ms. Skuse sued Pfizer for religious discrimination and Pfizer responded by filing a motion to dismiss the Complaint and to compel binding arbitration. Pfizer claimed that Ms. Skuse had agreed to mediate because she had clicked a box in a digital training module acknowledging that she had received the module and had an opportunity to read the new arbitration policy. The policy provided that, even if Ms. Skuse did not agree to the policy, Pfizer would “deem” her to have agreed if she continued to work for an additional 60 days. The Trial Judge, Kay Walcott-Henderson, J.S.C., granted Pfizer’s motion. Ms. Skuse appealed.
The Appellate Division, in Skuse v. Pfizer, Inc., reversed the dismissal and reinstated Ms. Skuse’s lawsuit. The Court began by stating that the case “exemplifies an inadequate way for an employer to go about extracting its employees’ agreement to submit to binding arbitration for future claims and thereby waive their rights to sue the employer and seek a jury trial.” The Court ruled that a mere acknowledgement of the receipt of an arbitration policy does not create a binding and enforceable agreement to waive the statutory right to sue and have a jury trial. The Court affirmed existing case law that an employer must do more than “teach” employees about the company’s binding arbitration policy. The employer must also obtain its employees’ explicit, affirmative, and unmistakable assent to the arbitration policy in order to secure their voluntary waiver of their rights under the law.
The Court expressly disagreed with, and declined to follow, cases from both New Jersey and Pennsylvania which enforced arbitration agreements under similar circumstances. The Court advised employers to make sure to include the words “agree” or “agreement” in any click box seeking to bind an employee, and further suggested that it could say, “Click here to convey your agreement to the terms of the binding arbitration policy and your waiver of your right to sue.”
This is a big victory for employees who wish to preserve their statutory rights to be fully protected from workplace discrimination. The is the third major published opinion for Alan H. Schorr in mandatory arbitration cases. He was also the prevailing attorney in Quigley v. KPMG, and more recently, in Morgan v. Raymours, Inc.
If your employer is requiring you to agree to mandatory arbitration and you do not wish to do so, contact us for a free initial consultation. We may be able to help.