On January 19, 2021, the New Jersey Superior Court, Appellate Division, issued a noteworthy decision enforcing an arbitration agreement in the employment context. The plaintiff in the case claimed that her supervisor committed various acts of sexual harassment and retaliation prohibited by the New Jersey Law Against Discrimination. The defendant-employer moved to compel arbitration of these claims, arguing that the plaintiff did not opt out of its arbitration program for workplace disputes. Notably, the employer sent the plaintiff an e-mail in September of 2015 explaining the expansion of its arbitration program, which required employees to arbitrate such claims. The e-mail’s subject title specifically referred to arbitration and the e-mail included a provision that allowed employees to opt out of the program.

In support of the applicability of its arbitration program to plaintiff’s claims, the employer produced testimony and metadata demonstrating that the above-mentioned e-mail was marked as “read” by the plaintiff’s e-mail inbox, but she never opted out. Other e-mails received by the plaintiff at that same time were not marked as “read”. The plaintiff responded that the mere receipt of an email was insufficient to establish the mutual assent necessary to compel arbitration in New Jersey.

The Appellate Division found that since the plaintiff received the e-mail, did not return the opt-out form and then continued to work for her employer under the conditions set forth in the e-mail, there was an enforceable agreement to arbitrate her claims. Relying on the New Jersey Supreme Court’s recent decision in Skuse v. Pfizer, Inc., 244 N.J. 30 (2020), the Court found that the plaintiff’s alleged failure to review the e-mail did not invalidate the agreement to arbitrate.

It is unclear whether this decision signals a trend of more balanced treatment of arbitration agreements by New Jersey’s courts. However, following Skuse, it is a step in the right direction towards conforming New Jersey’s treatment of arbitration agreements with the mandate of the Federal Arbitration Act.

Read a copy of the decision here.