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Company XYZ adopted a new policy requiring arbitration of all employee disputes, including discrimination, retaliation and harassment claims. But, instead of distributing hard copies of the revised policy and holding in-person question and answer sessions designed to explain those revisions, the human resources director sent an e-mail notice of the new policy — with a link to the actual policy document — to the entire workforce. Using e-mail in this fashion is certainly more efficient from a time and cost standpoint. However, is it effective, especially when the company wishes to rely on the policy change in litigation brought by one of its employees? In Campbell v. General Dynamics Government Systems Corp., 321 F.Supp.2d 142 (D. Mass. 2004), the efficacy of e-mail communication was raised in a disability discrimination case where the employer moved to compel plaintiff to arbitrate his claim based on the company’s dispute resolution policy. The controversy surrounded whether the company successfully notified plaintiff of that policy. Most of the facts in Campbell were undisputed. On April 30, 2001, General Dynamics sent an e-mail message to all employees. The subject line of the e-mail identified the company president’s name and reflected the following: “New Dispute Resolution Policy.” Not until the fifth paragraph did the e-mail mention that the new dispute resolution policy was an essential element of the employment relationship. Nowhere else did the e-mail indicate, either implicitly or explicitly, that the employees’ continued employment was dependent on their acceptance of the policy. Campbell, 321 F.Supp.2d at 144. The e-mail included two links to documents located on the company’s internal Web site. The first link brought the employee to a flyer which set out the key provisions of the DRP in question and answer format. In bold typeface, the flyer informed employees that the DRP was the exclusive means of resolving workplace disputes, including employment discrimination and harassment claims. The second link brought the employee to a 26-page handbook, which detailed the provisions of the DRP. Id. at 144-145. Plaintiff denied having any memory of receiving the e-mail. General Dynamics presented a “tracking log” as evidence that the plaintiff opened the e-mail two minutes after the e-mail was sent. The company, however, did not offer any evidence that the plaintiff clicked on either link or read the text of the e-mail. Moreover, the company did not require its employees to signify by return e-mail that they had read the e-mail, read the attachments and understood their significance, or accepted the information specified in the original e-mail. Lastly, the company did not hold a meeting announcing the DRP with a sign-in sheet recording who attended such a meeting. Id. at 145. In evaluating whether the e-mail notification was sufficient, the trial court placed great importance on the nature of the information that General Dynamics communicated via the e-mail. At one point in its decision, the court referred to the “substantial change in policy” of General Dynamics; at another point, it referred to the conveying of “information of this significance.” Id. Under this backdrop, the Campbell court considered the propriety of using e-mail as a means of communication. While recognizing that e-mail is both an inexpensive and convenient means of notification, the court also commented that e-mail has many drawbacks, including: most users receive incredible volumes of messages; it is often hard to distinguish between important and frivolous e-mails; and it is commonplace for individuals to reflexively open and delete a mass e-mail without reading it or even being aware of it. Given these realities, the court refused to presume that the plaintiff in Campbell read the text of the e-mail in question, clicked on its links, and read the linked documents. Ultimately, the court determined that General Dynamics should bear the risk of ignorance for those employees who chose not to read the e-mail and its attachments. According to the trial judge, it was General Dynamics that selected the means of dissemination and “who could have cheaply and easily announced the change in a way that would have ensured that Campbell and every other employee knew.” Id. at 149. Having failed to do that and in the absence of any evidence that plaintiff was aware of the e-mail’s contents and the significance of the DRP, the Campbell court would not assume knowledge on the plaintiff’s part simply because he clicked the e-mail to open it. Id. at 150. Not surprisingly, the court denied the company’s motion to stay the proceedings and compel arbitration. Although Campbell is a trial court decision and therefore has limited, if any, precedential value, the decision offers many practical, common sense suggestions for an employer wishing to effectively convey, via e-mail, important information to its employees. For example, the company can require the individual to signify by return e-mail that he has read the original e-mail and attachments, understood their implications and accepted their conditions. In addition, the company can configure its system to record when and if the employees clicked on a link contained in the e-mail. Failing these steps, the company can also hold seminars or question and answer sessions explaining the policy changes, making sure to maintain a sign-in sheet of which employees attended which session. Before blindly heeding these lessons of Campbell, however, the company’s lawyers should examine the law of the governing jurisdiction to determine if those courts have spoken on the issue of effectively communicating revised policies to a group of employees. For example, does that jurisdiction require that the new policy be disseminated in the same fashion as the predecessor policy? Does the applicable law equate notice to an employee with knowledge by that employee? See, e.g., Leodori v. Cigna Corp., 175 N.J. 293, 306-07 (2003) (employee against whom arbitration requirement is sought to be enforced must have assented to waiver of statutory rights; employee’s signature to agreement “is the customary and perhaps surest indication of assent”); Mannix v. County of Monroe, 348 F.3d 526, 536 (6th 2003) (to spread word of revised policies, employer held meetings between department heads and employees and put policies on e-mail system; in finding this to be “reasonable notice,” appellate court rejected employee’s claim that he never received actual notice of revised policies and observed that given “the advancement and ubiquity of electronic corporate communications, we will not induce a return to older practices by imposing a paper receipt requirement”); Highstone v. Westin Eng g, Inc., 187 F.3d 548, 553 (6th Cir. 1999) (record showed that employer sent two e-mails notifying employees of changes to policy manual and published manual on-line; employer “satisfied its burden by reasonably notifying affected employees of the changes to the manual”). In the absence of definitive answers to these questions, employers should proceed with caution when using e-mail as the means of communication. E-mail communication of important information is analogous to the distribution of company documents specifying that the employee’s relationship with the company is at will. Good business sense dictates that the employer have each employee sign something acknowledging that he is an at-will employee or that he has received and reviewed the company documents. Then, if and when that employee claims he could only be discharged for cause, the signed acknowledgment can be used as compelling, if not dispositive, evidence to rebut that claim. See, e.g., Radwan v. Beecham Labs, 850 F.2d 147, 150 (3d Cir. 1988) (by signing application wherein employee acknowledged he had accepted at-will employment relationship, court held that plaintiff “could hardly have any reasonable expectation that [the employer's] manual granted him the right only to be discharged for cause”); Asen v. Cooper Hospital/Univ. Med. Ctr., 1996 U.S. Dist. LEXIS 8680 at 33 (D.N.J. June 7, 1996) (“[u]nder New Jersey law, the terms of a general employee manual are superseded by the existence of an express written document establishing an at-will employment status”); McDermott v. Chilton Co., 938 F.Supp.240, 245 (D.N.J. 1995) (plaintiff, who signed employment application which provided that employment was at will “cannot then have had any reasonable expectation that [the employer's personnel] manual granted him the right only to be discharged for cause,” and, therefore, could not maintain a Woolley claim) (internal citations omitted). That same good business judgment should apply when the workplace policy is communicated via e-mail. A signed acknowledgment that the employee has received, read and agreed to the policy change(s) reflected in the e-mail may go a long way in helping to defeat an argument made during litigation that the employee was not aware of the e-mail’s contents. Using e-mail as a means of communicating with a workforce offers many advantages — speed, convenience and cost among them. An employer, however, should not allow these obvious and immediate benefits to cloud its judgment as to what constitutes an effective e-mail communication. More than a simple e-mail notification may be required. The employer that chooses only to send a simple e-mail notice, without more, may find itself bearing an unwanted and unenviable risk, just as General Dynamics did in Campbell. David Ganz, who represents management in employment litigation, is a shareholder with Jacob & Mills of Somerset, N.J.

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