December 4, 2018
appeal from Superior Court of New Jersey, Law Division,
Mercer County, Docket No. L-2374-17.
H. Schorr argued the cause for appellant (Schorr &
Associates, PC, attorneys; Alan H. Schorr, on the briefs).
M. Nolan argued the cause for respondents (Jackson Lewis, PC,
attorneys; John M. Nolan, of counsel and on the brief; Carla
D. Macaluso and Timothy M. McCarthy, on the brief).
J. Sarno argued the cause for amicus curiae Employers
Association of New Jersey (Ford & Harrison, LLP,
attorneys; John J. Sarno and Mark A. Saloman, of counsel and
on the brief; Jeffrey A. Shooman, on the brief).
Richard M. Schall argued the cause for amicus curiae National
Employment Lawyers Association of New Jersey (Schall &
Barasch, LLC, attorneys; Richard M. Schall, on the brief).
Lowenstein Sandler, LLP, attorneys for amicus curiae New
Jersey Civil Justice Institute (Gavin J. Rooney, on the
Judges Sabatino, Haas and Mitterhoff.
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.
employer in this case emailed to its workforce what it called
a "training module" (or "activity" or
"course"). The module described the company's
mandatory arbitration policy, as presented in a series of
slides on computer screens. One screen provided employees
with the opportunity to access a "Resource" link to
the full text of the policy. In a separate email, the
employer supplied a computer link to Frequently Asked
Questions ("FAQs") concerning the policy.
third slide of the module presentation, the employees simply
were asked to "acknowledge" it with the click of an
electronic button. The module declared that if an employee
did not click the acknowledgement, but continued to work for
the company for sixty or more days, the employee would be
"deemed" to be bound by the arbitration policy.
the arbitration policy is labeled an "agreement"
and that word appears multiple times on the slides and within
the linked policy, the module did not request employees to
provide signatures conveying their agreement. Nor were the
employees asked - within the four corners of the pivotal
"click" box at the end of the presentation - to
memorialize that they expressly agreed to the policy. They
were only asked within the box to "acknowledge" it.
oblique procedure does not yield the valid personal agreement
of an employee to give up his or her statutorily protected
rights to litigate claims against an employer in a public
forum and seek a trial by jury. The procedure falls short of
the requirements of New Jersey contract law, particularly the
Supreme Court's longstanding precedent in Leodori v.
CIGNA Corp., 175 N.J. 293, 303 (2003) (holding an
employee's valid waiver of statutory rights, there in the
context of an employer's binding arbitration policy,
"results only from an explicit, affirmative
agreement that unmistakably reflects the
employee's assent") (emphasis added), as well as the
Court's more recent opinion in Atalese v. U.S. Legal
Services Group, L.P., 219 N.J. 430, 447 (2014) (holding
the words of an arbitration agreement "must be clear
and unambiguous that a [person] is choosing to
arbitrate disputes rather than have them resolved in a court
of law") (emphasis added).
plaintiff employee never expressed in written or electronic
form her explicit and unmistakable voluntary agreement to
forego the court system and submit her discrimination claims
against her former employer and its officials to binding
arbitration. Consequently, we reverse the trial court's
order dismissing her complaint and compelling arbitration. We
do so without prejudice to the company appropriately revising
its approach in the future.
November 2017, plaintiff Amy Skuse filed a complaint in the
Law Division against her former employer Pfizer, Inc.
("Pfizer"), and several other Pfizer
officials. Plaintiff's complaint alleges a
violation of the New Jersey Law Against Discrimination
("LAD"), N.J.S.A. 10:5-1 to -49, based on religious
discrimination, and a failure to provide reasonable
accommodation for her religious beliefs.
complaint makes a host of allegations, most of which we need
not repeat here for purposes of our forum analysis, and which
have yet to be proven. The following summary of
plaintiff's complaint will suffice.
worked for Pfizer as a flight attendant, beginning in 2012.
Her principal place of employment was out of Pfizer's
airport facility in West Trenton.
is a practicing Buddhist. As part of her religious beliefs,
plaintiff "does not, and never has as an adult, received
any injections that contain any kind of animal protein."
has a company policy requiring that its flight attendants
receive a yellow fever vaccine. Plaintiff did not receive
such a vaccine. According to her complaint, plaintiff was not
pressured to do so by the company until on or around April
17, 2017. On that occasion, defendants Witzig and Mangeot
allegedly met with her and gave her an "ultimatum"
to receive the vaccination within thirty days or else be
declined to receive the vaccination, which apparently
contains animal-derived ingredients. According to her
complaint, she informed Pfizer she had a valid "yellow
card" waiver authorizing her to travel to any country
without the vaccination. She presented a letter from her
physician, documenting that she elected not to receive the
vaccination because of "philosophical reasons that are
similar to a religious belief." Nonetheless, defendants
allegedly continued with their ultimatum and intensified the
pressure on her to get the vaccine.
early May 2017, plaintiff suffered a breakdown, allegedly
from the company's threats. Defendants granted her a
leave from work, pursuant to the Family Medical Leave Act,
N.J.S.A. 34:11B-1 to -16. When plaintiff was medically
cleared to resume work two months later, defendants refused
to allow her to return. They instead placed her on an
indefinite paid leave.
then filed a formal request with Pfizer for an accommodation
from the yellow fever vaccination requirement, specifically
citing her "strong religious conviction." She met
with Corbett to discuss that request.
the meeting, Corbett sent plaintiff a letter denying her
request for religious accommodation. Plaintiff sought
internal review of this decision, apparently with
Pfizer's human resources division. Pfizer denied that
August 11, 2017, Pfizer terminated plaintiff's
filed the instant lawsuit about three months later. In
response to the complaint, defendants filed a motion seeking
to dismiss this action and compel plaintiff to submit her
claims to binding arbitration. The motion invoked the Federal
Arbitration Act ("FAA"), 9 U.S.C. §§ 1 to
16, and the New Jersey Uniform Arbitration Act, N.J.S.A.
2A:23B-1 to -32.
Company's Arbitration "Training Module"
issue before us is whether the parties entered into a valid
mutual agreement to arbitrate plaintiff's claims.
emphasizes that plaintiff electronically received and
completed a training module presenting the company's
mandatory binding arbitration policy. Plaintiff thereafter
continued working for the company for thirteen months until
she was discharged. Pfizer argues that through this process
plaintiff thereby assented to, and must be bound by, the
counters that she never expressed her agreement to the
arbitration policy. She insists she did not waive any of her
rights to litigate against Pfizer under the State's
anti-discrimination and employment laws.
"training module" (also referred to as an
"activity" or "course") used to
disseminate Pfizer's arbitration policy was transmitted
to thousands of its employees by email, linking to
company's computer-based training portal. As described in
a motion certification by the company's "Enterprise
Learning Architect," Robert M. Baker, the mass
transmission was conducted in May 2016 through emails
"assigning" to each employee recipient "the
activity of taking an on-line module to review the
[company's] Mutual Arbitration and Class Waiver Agreement
and Acknowledgement." (Emphasis added).
emails contained a link that the employees were expected to
click to launch the module through the same portal
"Pfizer employees use for many of their assigned
trainings." The company imposed a deadline of July 4,
2016 for employees to complete the assigned module activity,
on which date the policy would become effective.
provided, via a separate email, gave employees the ability to
access FAQs concerning the new mandatory policy. The FAQs
included, among other things, the following questions and
4. Do I have to agree to this?
The Arbitration Agreement is a condition of continued
employment with the Company. If you begin or continue
working for the Company sixty (60) days after receipt of this
Agreement. It will be a contractual agreement that binds both
you and the Company.
5. Can I change any parts of the agreement that I do not
No, you cannot change any of the terms of the
6. Do I give up any rights under the Arbitration Agreement?
Please review the Arbitration Agreement carefully to fully
understand its terms and conditions. By agreeing to the
Arbitration Agreement through continuing your employment with
Pfizer, you are giving up the right to bring
employment-related claims covered by the Agreement against
Pfizer in a court of law. Instead, you are
agreeing to arbitrate those claims before a neutral
arbitrator. You are also agreeing to bring those
claims on an individual basis and not on a class action,
collective action, or representative action basis. Pfizer is
also giving up the right to bring employment-related claims
covered by the Agreement against you in court and is agreeing
to bring any such claims on an individual basis in
parties' appendices contain screenshots of the
module's four computer slides that presented Pfizer's