Employer's E-Mail Notice of New Arbitration Policy Insufficient
October 15, 2004

On June 3, 2004, the Federal District Court for the District of Massachusetts decided the case of Campbell v. General Dynamics Government Systems Corporation. At issue in that case was whether an employer’s e-mail was adequate to notify employees of its new policy requiring employment disputes to be decided by binding arbitration, rather than in court. The Court’s ruling in this case provides valuable guidance to employers about appropriate methods of providing e-mail notice to employees in the event of important policy changes.

Roderick Campbell began his employment with General Dynamics Government Systems Corporation (“General Dynamics”) in February 2000. In April of 2001, his employer sent an e-mail with a subject line which read, “G.DeMuro—New Dispute Resolution Policy” ("DRP"). The e-mail was a letter from Mr. DeMuro, the former president of General Dynamics. The first two paragraphs contained “no mention of the DRP, the importance of the e-mail, or anything even remotely indicating that the e-mail was to have the effect of taking away employees’ rights to a federal judicial forum,” containing instead “innocuous” information about General Dynamics’ role as a “leader” in a “very competitive marketplace.” The third paragraph of the e-mail gave a broad description of the DRP. The fifth paragraph noted that the DRP would be effective on May 1, 2001, and described it as an “essential element of [employees’] employment relationship.”

There was no other reference to the DRP in the text of the e-mail, although the e-mail contained two links to other documents. One of these documents was a two-page flyer providing generalized information about the DRP in question-and-answer format, which stated that the DRP is the “exclusive means of resolving workplace disputes for legally protected rights,” and that it would apply to any employees who continued their employment after the effective date of the policy. The other link connected persons who clicked on it to the employee handbook which contained the detailed DRP.

Mr. Campbell’s employment was terminated in December 2002. Mr. Campbell claimed that he suffered from sleep apnea and that he had been terminated from General Dynamics because of this disability in violation of Massachusetts law and the Americans With Disabilities Act (“ADA”).

Mr. Campbell filed a charge of discrimination with the Massachusetts Commission Against Discrimination (“MCAD”) and a subsequent action in Superior Court. General Dynamics then removed the action to federal court and filed a motion requesting the federal court stay its proceedings. In this motion, it argued that its DRP required Mr. Campbell to submit his claim of employment discrimination to arbitration, rather than pursuing it in the courts. It claimed that Mr. Campbell had proper notice of the DRP and was bound to comply with it, as he had received and opened the e-mail providing notice about the DRP.

As a general rule, an employee cannot relinquish the statutory right to litigate employment discrimination claims unless: (1) the employee knows that he or she has done so; or (2) if the notice received by the employee is sufficient to bind the employee despite a lack of actual knowledge. In response to General Dynamics’ motion, Mr. Campbell contended that the DRP was not enforceable because he received insufficient notice of the DRP. In support of his position, Mr. Campbell argued that he had no memory of receiving the e-mail announcing the DRP, let alone reading it. Mr. Campbell explained that he received between 10 and 100 mass e-mails per day, many of which related to corporate issues such as “company functions, birthdays and anniversary announcements, and other trivial matters.”

The Court noted that “[t]he practice of reflexively opening (so as to remove the unread tag) and deleting a mass e-mail without reading it, or even being aware of it, is not uncommon.” It further noted that the employer had not utilized the simple mechanism of requiring its employees to send a responsive e-mail indicating that they had read and understood the DRP, or that the employee accepted the DRP as the sole mechanism for resolving employment disputes with the employer. The Court further noted that General Dynamics had failed to “use the old fashioned ways of assuring notice,” such as holding a meeting to announce the DRP, with a sign-in sheet to “monitor which employees had attended.”

The Court held that the DRP was not binding on Mr. Campbell, and that he could pursue his employment discrimination claims in court. It decided that, “[u]nder these circumstances, to presume that [Mr.] Campbell read the text of the e-mail, clicked on its links, and read the linked documents, and [to] use that as the basis for depriving him of rights guaranteed to him by federal law, would be to show an intolerably low level of respect for those rights.”

Employers should carefully consider the implications of this decision if electing to implement important policy changes via e-mail. As the Court noted in this case, it is possible for an employer to request that employees send a responsive e-mail or acknowledgment of receipt stating that the employee has read the new policy, understood it, and is willing to abide by its terms. When dealing with policies such as the one in the Campbell case where employees will be giving up legal rights, it is particularly important to retain evidence that the employee understands and acknowledges the new policy.

Even if employees’ legal rights are not involved, ensuring that all employees receive and are aware of new employer policies is important. If an employer chooses to announce a new policy via e-mail only, the employer should make efforts to clearly indicate, both in the subject line and in the beginning of the e-mail, the topic of the message and its importance. Use of emphatic fonts and clear language can help to separate important e-mails from generic corporate announcements.