NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3027-17T4

AMY SKUSE,

Plaintiff-Appellant,

v.

PFIZER, INC., JOHN D. WITZIG,

PAUL MANGEOT, and CONNIE

CORBETT, individually, jointly,

severally and/or in the alternative,

Defendants-Respondents.

________________________________

Argued December 4, 2018 – Decided

Before Judges Sabatino, Haas and Mitterhoff.

On appeal from Superior Court of New Jersey, Law 

Division, Mercer County, Docket No. L-2374-17.

Alan H. Schorr argued the cause for appellant (Schorr 

& Associates, PC, attorneys; Alan H. Schorr, on the 

briefs).

John 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).

John J. Sarno argued the cause for amicus curiae 

Employers Association of New Jersey (Ford & 

Harrison, LLP, attorneys; John J. Sarno and Mark A. 

January 16, 2019

APPROVED FOR PUBLICATION

January 16, 2019

APPELLATE DIVISION
A-3027-17T4

2

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 brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

This 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 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.

On the third slide of the module presentation, the employees simply were 

asked to "acknowledge" it with the click of an electronic button. The module 
A-3027-17T4

3

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.

Although 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.

This 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 
A-3027-17T4

4

choosing to arbitrate disputes rather than have them resolved in a court of law") 

(emphasis added).

The 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.

I.

In November 2017, plaintiff Amy Skuse filed a complaint in the Law 

Division against her former employer Pfizer, Inc. ("Pfizer"), and several other 

Pfizer officials.1 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.

The Vaccination Dispute

 

1

 The named individual codefendants are: John D. Witzig – Pfizer's Vice 

President of Corporate Aviation, a direct manager of plaintiff; Paul T. Mangeot 

– Pfizer's Chief Pilot, Fixed Wing, another direct manager of plaintiff; Connie 

Corbett – Pfizer's Human Resources Director; and fictitiously named parties 

John Does 1-10. We refer to the defendants hereafter collectively as "Pfizer" or 

"defendants," unless otherwise indicated by the context.
A-3027-17T4

5

The 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.

Plaintiff 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.

Plaintiff 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."

Pfizer 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 terminated.

Plaintiff 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 
A-3027-17T4

6

that are similar to a religious belief." Nonetheless, defendants allegedly 

continued with their ultimatum and intensified the pressure on her to get the 

vaccine.

In 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.

Plaintiff 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.

Following 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 internal 

appeal.

On August 11, 2017, Pfizer terminated plaintiff's employment.

Plaintiff 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 
A-3027-17T4

7

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.

The Company's Arbitration "Training Module"

The key issue before us is whether the parties entered into a valid mutual 

agreement to arbitrate plaintiff's claims.

Pfizer 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 arbitration policy.

Plaintiff 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.

The "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 
A-3027-17T4

8

on-line module to review the [company's] Mutual Arbitration and Class Waiver 

Agreement and Acknowledgement." (Emphasis added).

The 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.

A link 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 answers:

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 like?

No, you cannot change any of the terms of the 

Arbitration Agreement.

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 
A-3027-17T4

9

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 arbitration.

[(Emphasis added).]

The parties' appendices contain screenshots of the module's four computer 

slides2that presented Pfizer's arbitration policy. The first slide states:

As a condition of your employment with Pfizer, 

you and Pfizer agree to individual arbitration as the 

exclusive means of resolving certain disputes relating 

to your employment. This agreement is contained in 

the Mutual Arbitration and Class Waiver Agreement. It 

is important that you are aware of the terms of this 

Agreement.

The next page contains the Mutual Arbitration 

and Class Waiver Agreement. You will be able to 

review and print the Agreement. You will then be 

asked to acknowledge your receipt of the Agreement.

[(Emphasis added).]

The second slide states:

 

2

 Defendants also have provided a slide of the initial page for the module, which 

simply allows the employee to choose to scroll through the module in either 

English or Spanish.
A-3027-17T4

10

Click the "Resources" tab in the upper-right 

corner to review the Agreement.

Once it is opened, you may print the Agreement 

and retain for your records.

After reviewing the [A]greement, close the 

window and return to this page.

According to Baker's certification, the Resources link on this second slide 

"allowed" an employee to open and review the arbitration agreement. The link 

also gave an employee "the opportunity" to print the agreement.

Assuming it is accessed through the Resources link, the company's fivepage, single-spaced arbitration policy makes clear that, with certain categorical 

exceptions not pertinent here (such as worker's compensation claims), "all 

disputes, claims, complaints, or controversies . . . that [a Pfizer employee] ha[s] 

now or at any time in the future may have against Pfizer and/or any of its . . . 

current and former officers, directors, [or] employees . . . arising out of and/or 

directly or indirectly related to . . . [the employee's] employment with the 

Company . . . and/or termination of [the employee's] employment with the 

Company . . . will be resolved by arbitration and NOT by a court or jury." 

Pertinent to this case, the covered claims specifically include claims for 

"wrongful discharge, discrimination, and/or harassment."

The linked document states, in all capital letters, that "The parties hereby 

forever waive and give up the right to have a judge or jury decide any covered 
A-3027-17T4

11

claims." The document goes on to spell out various other procedures, terms, 

and conditions, including such things as the sharing of arbitration fees and the 

confidentiality of the arbitration process.3

The third slide states:

I understand that I must agree to the Mutual 

Arbitration and Class Waiver Agreement as a condition 

of my employment. Even if I do not click here, if I 

begin or continue working for the Company sixty (60) 

days after receipt of this Agreement, even without 

acknowledging this Agreement, this Agreement will be 

effective, and I will be deemed to have consented to, 

ratified and accepted this Agreement through my 

acceptance of and/or continued employment with the 

Company.

[(Emphasis added).]

Below this language on the third slide appears a rectangular box with rounded 

corners. On the right side of the box is a circled diagonal arrow pointing upward. 

Next to the arrow are these four words: "CLICK HERE to acknowledge." 

(Emphasis added).

The final slide states, "Thank you for reviewing the Mutual Arbitration 

and Class Waiver Agreement. Please send any questions you have on the Mutual 

Arbitration and Class Waiver Agreement to ArbitrationProgram@pfizer.com. 

Click 'Exit' to exit this course." (Emphasis added).

 

3

 Plaintiff has not argued the text of the arbitration policy insufficiently explains 

the policy.
A-3027-17T4

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The Motion Practice

Plaintiff submitted a certification to the trial court in response to Pfizer's 

motion to dismiss and compel arbitration, in which she stated, in pertinent part:

In summary, I never saw an email about 

Arbitration, I never took any Arbitration training, I 

never read or saw any Arbitration Agreement, and 

never agreed to arbitrate any claims of discrimination. 

I did not [waive], and would never have knowingly 

waived my rights to sue or to have the right to have my 

complaint of discrimination decided by a jury.

[(Emphasis added).]

In response to this certification, Pfizer presented its own certifications of 

two company representatives, with accompanying exhibits. One certification 

came from Baker, the company's Enterprise Learning Architect. The other was 

from Edward Gramling, Senior Corporate Counsel in Pfizer's Legal Division 

and head of its Discovery Group. Gramling attached copies of the emails sent 

to plaintiff on May 5, May 6, and June 9, 2016 about the company's arbitration 

policy.

The May 5, 2016 email was from Pfizer’s Executive Vice President for 

Worldwide Human Resources. That email, which included a hyperlink to the 

Agreement and the FAQs, stated in part:

Later today, you will receive a message from the 

P2L training program to read and acknowledge the 

[arbitration] agreement. I request that you read the 

agreement and review the FAQs before acknowledging 
A-3027-17T4

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the agreement. . . . All covered colleagues will be bound 

by the agreement as part of their continued employment 

at Pfizer. If you have any questions, I encourage you 

to review the FAQ's and/or refer your questions to 

ArbitrationProgram@pfizer.com.

[(Emphasis added).]

The automated email sent to plaintiff the next day from Pfizer’s online 

training system, stated, in pertinent part:

Greetings Amy Skuse,

You have been assigned the activity Mutual 

Arbitration and Class Waiver Agreement and 

Acknowledgement . . . for the following reason: As a 

condition of your employment with Pfizer, you and 

Pfizer agree to individual arbitration as the exclusive 

means of resolving certain disputes relating to your 

employment. This agreement is contained in the 

Mutual Arbitration and Class Waiver Agreement. It is 

important that you are aware of the terms of this 

Agreement.

[(Emphasis added).]

As explained by Baker, an employee who clicked through the first three 

training module slides, including the button acknowledging the arbitration 

agreement, would be recorded as "completing" the module in Pfizer's training 

records. He attached a copy of plaintiff's digital records showing that she started 

and completed the module on June 9, 2016.

Baker noted that Pfizer employees have a unique computer login 

identification and password, which they are prohibited by the company from 
A-3027-17T4

14

"revealing, sharing or making available" to others. According to Baker, 

employees who complete the training module are sent an automated email 

confirming such completion. He attached the email to plaintiff, sent on June 9, 

2016, confirming her completion of the module. The message states, "Amy 

Skuse, [y]ou have completed the following training: . . . Mutual Arbitration and 

Class Waiver Agreement and Acknowledgement . . . ." (Emphasis added).

Plaintiff neither stipulates to nor disproves her receipt of these various 

emails. Instead, she maintains that she "was never asked nor required to 

acknowledge or agree [to the binding arbitration policy], and therefore the 

factual question as to whether she even saw the policy is irrelevant."

Before ruling on Pfizer's motion to dismiss the lawsuit and refer plaintiff's 

discrimination claims to binding arbitration, the motion judge asked if the 

parties wanted a hearing to address the issue of "the denial by the plaintiff that 

she ever saw the arbitration agreement," or if they instead "want[ed] the [c]ourt 

to decide the issue without the hearing." Plaintiff's counsel responded that such 

an evidential hearing would be "both unnecessary and an unwieldy situation. In

order for us to have a plenary hearing, we would . . . take the depositions of all 

these people who are saying that they . . . put this on the computer. We'd need 

to get our computer experts to take a look at this to see how this system works." 

Accordingly, plaintiff's counsel requested the trial court, for purposes of the 
A-3027-17T4

15

motion to dismiss and compel arbitration, "to assume that Amy Skuse got the 

email and that she saw the screen that said, I acknowledge receipt of this policy."

The Motion Ruling

After considering the parties' contentions, the motion judge issued an oral 

opinion, with an accompanying written order, granting defendants' motion on 

February 21, 2018. In her oral opinion, the judge observed that Pfizer's 

acknowledgment procedure "nowhere specifically asks plaintiff to confirm that 

she has received the agreement." Even so, the judge was persuaded that, given 

plaintiff’s continued employment well-past the specified sixty days and "[i]n 

light of the text on the slides and plaintiff’s action or inaction, plaintiff’s 

apparent intent was to be bound by this agreement." The court therefore 

dismissed plaintiff's complaint with prejudice, and directed her to proceed with 

arbitration, pursuant to the terms of the company's policy.

This Appeal and the Amici

Plaintiff timely appealed the trial court's order compelling arbitration, 

pursuant to Rule 2:2-3(a) and Wein v. Morris, 194 N.J. 364, 380 (2008). She is 

joined in her arguments for reversal by amicus National Employment Lawyers 

Association of New Jersey ("NELA-NJ"), an organization of private New Jersey 

attorneys who represent workers in employment litigation. Meanwhile, Pfizer's 

arguments seeking affirmance of the motion order are supported by two 
A-3027-17T4

16

employer-oriented amici: the Employers Association of New Jersey ("EANJ"), 

and the New Jersey Civil Justice Institute ("NJCJI"). This court granted all three 

amici organizations leave to participate in the appeal. We appreciate their 

helpful briefs and contributions to the appellate oral argument.

II.

A.

We begin our forum analysis by recognizing the federal and New Jersey 

legislative policies generally favoring arbitration as a dispute resolution process, 

in situations where that process has been mutually chosen by the parties. 

Atalese, 219 N.J. at 440, 442; see also 9 U.S.C. §§ 1 to 16; N.J.S.A. 2A:23B-1 

to -32 (our State's Arbitration Act, which is nearly identical to the FAA).

Consistent with these statutory policies, "a state cannot subject an 

arbitration agreement to more burdensome requirements than those governing 

the formation of other contracts." Leodori, 175 N.J. at 302. However, a state 

can regulate arbitration agreements "by applying its contract-law principles that 

are relevant in a given case." Ibid.

One of the fundamental elements of contract law is the requirement of the 

contracting parties' mutual assent. "A legally enforceable agreement requires 'a 

meeting of the minds.'" Atalese, 219 N.J. at 442 (quoting Morton v. 4 Orchard 

Land Tr., 180 N.J. 118, 120 (2004)). "Parties are not required 'to arbitrate when 
A-3027-17T4

17

they have not agreed to do so.'" Ibid. (quoting Volt Info. Scis. v. Bd. of Trs. of 

Leland Stanford Jr. Univ., 489 U.S. 468, 478 (1989)).

As the United States Supreme Court recognized when construing the FAA 

in AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011), state-law 

principles governing contract formation apply to arbitration agreements. If there 

is no meeting of the minds as to the material terms of an arbitration agreement, 

or the material terms are internally inconsistent or too vague or indefinite to be 

enforced, a court has the authority to decline to compel arbitration. See, e.g., 

NAACP of Camden Cty. East v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 425, 

431 (App. Div. 2011) (declining to enforce a car dealership's arbitration 

provisions where its contract forms were internally inconsistent and too vague 

and indefinite in several material respects).

Common-law principles of waiver also bear upon the analysis. At times 

a contractual provision will express a waiver by one or both parties giving up 

certain rights they may otherwise possess. "An effective waiver requires a party 

to have full knowledge of [his or her] legal rights and intent to surrender those 

rights." Knorr v. Smeal, 178 N.J. 169, 177 (2003) (citing W. Jersey Title & 

Guar. Co. v. Indus. Tr. Co., 27 N.J. 144, 153 (1958)).

In the context of a contractual arbitration, a necessary waiver would 

evidence a relinquishment of a party's right to pursue a lawsuit against the other 
A-3027-17T4

18

party in court and instead have the claims resolved in arbitration. "By its very 

nature, an agreement to arbitrate involves a waiver of a party’s right to have [his 

or her] claims and defenses litigated in court." Atalese, 219 N.J. at 442 (quoting 

Foulke, 421 N.J. Super. at 425). Here, the issue of waiver specifically concerns 

the waiver of an employee's right under the LAD to sue in Superior Court an 

employer who has engaged in alleged discriminatory conduct and seek a jury 

trial to resolve that claim. See N.J.S.A. 10:5-13.

Our case law has extended these requirements of mutual assent and 

knowing and voluntary waiver to the setting of arbitration provisions contained 

within employment relationships. For the last fifteen years, the guiding 

precedent on this subject in our State has been the Supreme Court's 2003 opinion 

in Leodori, 175 N.J. 293.

The plaintiff in Leodori was employed by the defendant insurance 

company. Id. at 295. During the plaintiff's tenure as an employee, the company 

had a policy purporting to require all of its workers to submit to binding 

arbitration of any employment disputes. Id. at 296. The arbitration policy was 

contained in a handbook distributed to all employees, including the plaintiff. 

Ibid. The handbook was accompanied by an "acknowledgement form," which 

included an acknowledgment of the employee's receipt of the handbook and a 

recitation that the employee understood the handbook contained information on 
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company policies. Id. at 297. However, the acknowledgment form did not 

contain any language specifically referring to arbitration. Ibid. A separate 

"Employee Handbook Receipt and Agreement" form accompanied the handbook 

and described the arbitration as a term of employment. Id. at 297-98. Leodori 

signed the "acknowledgement" form, but he did not sign the "agreement" form. 

Ibid.

After Leodori was terminated, he sued the company in the Law Division 

for the company's alleged violation of his rights under the New Jersey 

Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8. Id. at 299. The 

trial court dismissed the case based on its finding that the parties had entered 

into a binding arbitration agreement, and this court reversed that ruling. Ibid.

On review, the Supreme Court upheld this court and ruled that the 

company's arbitration policy was unenforceable against Leodori because he had 

not conveyed his knowing and voluntary agreement to that policy. Id. at 305. 

Writing for the Court, Justice Verniero announced the basic tenet that "an 

arbitration provision cannot be enforced against an employee who does not sign 

or otherwise explicitly indicate his or her agreement to it." Id. at 306.

The Court's opinion in Leodori further instructed that "a waiver-of-rights 

provision must reflect that an employee has agreed clearly and unambiguously

to arbitrate the disputed claim." Id. at 302 (emphasis added). Such a valid 
A-3027-17T4

20

waiver "results only from an explicit affirmative agreement that unmistakably

reflects the employee’s assent." Id. at 303 (emphasis added). The "critical 

inquiry" is whether plaintiff "surrendered [her] statutory rights knowingly and 

voluntarily." Id. at 305.

The Court did recognize the practical burden that large employers may 

encounter in attempting to obtain such voluntary assent from their employees to 

waive their rights to sue and submit to arbitration. Id. at 307. Given that 

practical concern, the Court made clear its holding was "not to be construed as 

requiring employers to negotiate individual agreements with their entire 

workforce to implement a company-wide arbitration policy." Id. at 307. As 

guidance, the Court stated that the employer in Leodori would have 

substantiated its employee's mutual assent and waiver if it either: (1) obtained 

the plaintiff's signature on the arbitration agreement, or (2) specified on the 

acknowledgment form, which the plaintiff did sign, that he had not only 

"received," but also "agreed" to the arbitration policy. Ibid. An 

acknowledgement form signed by the employee need not recite "verbatim" the 

arbitration policy, "so long as the form refers specifically to arbitration in a 

manner indicating [the] employee's assent, and the policy is described more fully 

in an accompanying handbook or in another document known to the employee." 

Ibid. The Court emphasized, "with minimal effort, employers can revise the 
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21

language to include an indication that the recipient has received and agreed to 

an arbitration policy." Ibid.

In the ensuing decade and a half since the Court's opinion in Leodori, our 

courts have faithfully applied its principles demanding the parties' manifested 

clear assent to arbitrate. See, e.g., Foulke, 421 N.J. Super. at 425; Rockel v. 

Cherry Hill Dodge, 368 N.J. Super. 577, 581 (App. Div. 2004); Kamaratos v. 

Palis, 360 N.J. Super. 76, 82-83 (App. Div. 2003). Although it is not an 

employment case, the Supreme Court's seminal opinion on this general topic in

Atalese, 219 N.J. at 447, reaffirmed that 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); see also

Kernahan v. Home Warranty Adm'r of Fla., Inc., __ N.J. __ (2019) (reaffirming 

the importance of the requirement of clear mutual assent to arbitrate).

B.

We apply these settled legal principles to the methods used by Pfizer to 

attempt to extract plaintiff's agreement to arbitrate. In doing so, our review of 

the trial court's legal conclusions is de novo. Atalese, 219 N.J. at 446. Like the 

trial court, we accept the factual concession of plaintiff's counsel that we are to 

assume, for sake of the analysis, that she did receive the pertinent company 

emails and did "click" the acknowledgement box at the end of the presentation.
A-3027-17T4

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As a starting point, we note a major technological difference between the 

setting in Leodori and the present case, namely an employer's use of an 

electronically transmitted "training module" to communicate and impose the 

terms of its mandatory arbitration policy. Unlike the employer in Leodori, 

Pfizer did not request or obtain physical signatures from the employees who 

were supplied with the policy. Instead, Pfizer attempted to secure its employees' 

assent to the policy through the use of digital techniques.

Pfizer, along with amici EANJ and NJCJI, urge us to affirm the trial 

court's ruling as an appropriate decision for our digital age. We recognize that 

in our current world, much of an employer's regular communications to its 

employees, and work-related communications between and among fellow 

employees, occurs through email and other digital means. A recent 2018 study 

revealed that an American worker spends, on average, 3.1 hours each weekday 

checking work email.4

Another present reality is that office employees tend to be inundated with 

a high volume of incoming email messages, and also send out a large number of 

their own emails. A global study of email statistics reported that, "in 2014, the 

 

4 See 2018 Adobe Consumer Email Survey, SlideShare, 

https://www.slideshare.net/adobe/2018-adobe-consumer-email-survey. The 

same study found that employees also spend, on average, 2.5 hours each 

weekday checking their personal email. Ibid.
A-3027-17T4

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majority of email traffic [came] from the business world, which account[ed] for 

over 108.7 billion emails sent and received per day."5 As of 2014, business 

users, on average, reportedly sent and received 121 emails daily, and that figure 

was projected to increase to 140 emails per day by 2018.6

Although the rapid growth of email traffic has advantages of convenience 

and efficiency, it can be difficult, even for conscientious office workers, to keep 

up with the unrelenting emails flowing into their email inboxes. We take judicial 

notice that, in order to deal with this deluge, people frequently skim (or scroll 

through without reading) written material sent to them digitally, such as when 

they download computer applications online, or receive impersonal messages or 

announcements from organizations. People also are prone to bypass links to 

other documents without meticulously opening and reading the contents of those 

links. Such habits, although perhaps not always commendable, have become 

digital survival mechanisms used to separate the proverbial wheat from the 

chaff.

 

5

 See The Radicati Group, Inc., Email Statistics Report, 2014-2018 3 (Sara 

Radicati ed., 2014), http://www.radicati.com/wp/wpcontent/uploads/2014/01/Email-Statistics-Report-2014-2018-ExecutiveSummary.pdf.

6

 Id. at 4.
A-3027-17T4

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We do not mean to discourage employers from using email to disseminate 

company policies and announcements. The difficulty is assuring that the most 

important employer messages are actually read and understood by the 

workforce, and, where the law requires it, responded to with the employees' 

knowing and explicit assent.

The digital communications in this case occurred in the important context 

of an employer soliciting a waiver of an employee's statutory rights. In that 

context, it is critical, as Leodori mandates, that the digital communications 

substantiate an employee's "explicit, affirmative agreement that unmistakably

reflects the employee's assent" to a binding arbitration policy. 175 N.J. at 303 

(emphasis added).

The company's binding arbitration agreement was conveyed through what 

defendants have rather euphemistically called a "training module" or "training 

activity." As Baker's certification noted, the portal is commonly used by Pfizer 

employees "for many of their assigned trainings." (Emphasis added). These 

prosaic labels do not fairly capture the essence of the endeavor, i.e., an effort to 

extract an employee's knowing and voluntary agreement to waive important 

rights that have been bestowed upon him or her by law.

Obtaining an employee's binding waiver of his or her legal rights is not a 

training exercise. It is not on a par with routine or mundane training subjects, 
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such as how to obtain an assigned space in an employee parking lot or process 

a travel voucher.

We appreciate that Pfizer's arbitration module was previewed by mass 

emails announcing the forthcoming module and "assigning" employees to 

complete it. Even so, these inapt euphemisms dilute the legal significance and 

necessary mutuality of the contractual process. 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. Leodori, 175 N.J. at 303.

As is the custom with most employers, Pfizer's arbitration policy is nonnegotiable. An employee cannot refuse to agree to the terms of the policy and 

remain employed with Pfizer, except for proven retaliatory or discriminatory 

conduct or some other statutory or contractual violation by the employer in 

responding to the employee's refusal. Nonetheless, the policy must be presented 

in a fashion that produces an employee's agreement and not just his or her 

awareness or understanding.

There is reason to doubt that all Pfizer employees who were sent the 

training module necessarily accessed and read the arbitration policy through the 

"Resources" tab on the third slide. The company's Enterprise Learning 
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Architect, Baker, describes the link to the Resources tab merely as an 

"opportunity" that is "allowed." Hence, there cannot be confidence that an 

employee actually took the time and effort to activate the tab and read the 

contents of the document linked to it.

A critical shortcoming of the company's procedure to obtain its

employees' individual assent to waive their rights is the "click box" that appears 

at the end of the presentation. The opening slide of the module tells employees 

that, after being presented with the policy, they will "then be asked to 

acknowledge [their] receipt of the Agreement." As the Court ruled in Leodori, 

an employee's mere receipt of the company's arbitration policy was not enough 

to make it enforceable against him. Id. at 307. The employee instead needed to 

manifest an "explicit, affirmative agreement" that reflects he "unmistakably" 

assented to it. Id. at 303.

The four-word click box on the module's third page selectively uses the 

verb "acknowledge" and does not use the verb "agree." We realize that other 

portions of the slides do contain and repeat the words agree and agreement. But 

the only portion of the module that calls for a response by the employee is the 

critical click box. Before encountering that box, the employee is not asked to 

initial key portions within the arbitration policy, as often is done with other 

important legal documents such as a car loan or a house purchase.
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Pfizer understandably wants the employee's click in the training module 

to substitute for a physical signature. The click is a crucial part of the mutual 

offer-and-acceptance exchange. Some employees surely will skip to the click 

box at the end of the presentation without paying close or any attention to the 

verbiage that preceded it. They may well rush to complete the assigned training 

activity before the company deadline. In keeping with the tenets of Leodori, it 

is vital that this momentous segment of the module make "unmistakably" clear 

that the employee is voluntarily agreeing to the arbitration policy, and not 

simply acknowledging it.7

Here, the intended meaning of the term "acknowledge" in the click box 

was clouded by the opening slide explaining that the employee would be asked 

at the end of the presentation to "acknowledge [his or her] receipt" of the 

company's form agreement – not mentioning the employee's need to also convey 

his or her assent to its terms. (Emphasis added). Moreover, the final slide 

merely thanks the employee for "reviewing" the document. The whole process 

is called a "training activity." Communications so vital to the mutual process of 

 

7 Although sometimes the word "acknowledge" might be considered a synonym 

of the word "agree," the former term can reasonably be thought to mean simply 

to "recognize" the existence of something. See Merriam-Webster's Collegiate 

Dictionary 11 (11th ed. 2003). For example, one might "acknowledge" the high 

price of a new car without "agreeing" to pay it.
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contract formation should not hinge upon loose and inconsistent wording that is 

reasonably capable of being misunderstood as something short of an agreement.

These deficiencies can be easily cured. For instance, rather than 

euphemistically calling the process a unilateral "training" activity, the company 

could identify the process to employees with terms that more accurately convey 

what it actually must be: for example, an agreement and a waiver of rights.

More importantly, to comply with the tenets of Leodori, 175 N.J. 293, the 

click box which seeks an employee's legally binding response should contain 

the word "agree" or "agreement." For example, 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." We will not prescribe in rigid fashion the exact 

language that should be immediately next to the click button, but the words used 

should have close proximity and prominence and contain the critical word 

"agree" or "agreement." The weaker term "acknowledge" does not suffice. 8

In Leodori, the Court states it would have sufficed for the employer in that 

case to revise the acknowledgement form to recite that "the employee had agreed

to the more detailed arbitration provision contained in the handbook." Id. at 307 

 

8 Our discussion in this regard should not be construed as a prohibition upon 

employers routinely transmitting company policies to workers through email 

and asking them to acknowledge those policies. Nor do we intend to disallow 

employers from seeking agreement to arbitration policies electronically if 

appropriately conducted consistent with this opinion.
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(emphasis added). We realize the words "agree" and "agreement" appear several 

times on the slides in Pfizer's module and also within the linked policy. In 

Leodori, the employees were asked to provide their physical signatures on the 

company's form, a process that reflects formality. Id. at 297. Here, the 

employee's momentary click of a button or an electronic mouse lacked 

equivalent formality when that click was not tethered to and spotlighted with a 

clear and proximate direction that, by clicking the button, the employee is 

knowingly agreeing to waive his or her legal rights. Given these deficiencies, 

the use of the words "agree" and "agreement" outside of the click button is not 

sufficient to satisfy the requirements of Leodori in this case.

Similar to the Court's discussion in Leodori, compliance with contract 

formation and waiver principles could be accomplished with relative ease. The 

company may have strategically decided to omit the word "agree" from the click 

box because using that term might cause some employees to balk and to question 

the arbitration policy. Regardless of why Pfizer formatted the language to say 

"acknowledge," it still holds the cards by demanding assent from its workers as 

a condition of continued employment. If an at-will employee refuses to agree to 

the policy, he or she can be shown the door, unless his or her discharge is 

otherwise prohibited by law.
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The more straightforward method the law requires may well generate 

discussions by employers with some workers who may hesitate to provide their 

electronic agreement. But the temporary inconvenience to companies in having 

such discussions would be offset by the benefit of achieving legally enforceable 

mutuality and clarity. Indeed, we suspect that very few, if any, employees would 

refuse to agree to the policy if they knew such refusal would cause them to lose 

their jobs. Nonetheless, their assent must be procured in a proper manner.

In sum, the wording and method of Pfizer's training module is inadequate 

to substantiate an employee's knowing and unmistakable assent to arbitrate and 

waive his or her rights of access to the courts. The trial court's decision 

validating the company's "acknowledgement" process is accordingly reversed.

C.

We turn to defendants' separate argument that plaintiff is "deemed" to be 

bound by Pfizer's mandatory arbitration policy because she continued to work 

for Pfizer for more than sixty days after receiving the arbitration agreement. 

This is certainly what the third slide on the module states. Such a proclamation 

of "consent by default" is legally insufficient, however, to satisfy the 

requirements of explicit and unmistakable employee assent prescribed by 

Leodori.
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The motion judge relied on Jaworski v. Ernst & Young U.S. LLP, 441 N.J. 

Super. 464 (App. Div. 2015), in concluding that Pfizer's sixty-day "deemer" 

provision was legally sufficient to manifest plaintiff's assent to the arbitration 

policy, because she worked at the company for over a year after the policy was 

disseminated via the training module in May 2016 and became effective in July 

2016. We respectfully disagree with that analysis.

In Jaworski, three employees challenged their agreement to their 

employer's binding arbitration policy, as it had been amended in 2007. Id. at 

467. Two of the employees had signed employment agreements that 

"unambiguously referenced and assented to the terms of the [arbitration 

program], including the 2007 amendments," and the panel in Jaworski found 

them bound by those terms. Id. at 473.

A third employee, Holewinski, involved a more difficult case. He signed 

an employment agreement after enactment of the initial arbitration program, but 

did not sign anything after the 2007 amendments. Ibid. Rather, he continued 

working for five years after receiving notification via email of the 2007 

amendments. Id. at 471, 474. The initial agreement Holewinski signed included 

a provision concerning future possible termination or amendment of the 

arbitration program, stating:

[The company] may propose termination or amendment 

of the program at any time by providing notice to 
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Employees through the Daily Connection [daily email 

bulletin] or other electronic notice. An Employee 

indicates his or her agreement to the proposed 

amendment or termination, and such proposed changes 

become effective as to that Employee, by continuing his 

or her employment with [the employer] for at least three 

days after the notice is provided.

[Id. at 469.]

The panel in Jaworski held that Holewinski was still bound by the 2007 

amendments because "[n]ot only did Holewinski continue with [the company] 

after the Effective Date, thus manifesting his intent to be bound pursuant to the 

unambiguous and specifically-emphasized terms of the Program, he did so for 

an additional five years until his termination in 2012." Id. at 474.

The circumstances of Holewinski addressed in Jaworski are 

distinguishable from those of plaintiff in this case. Unlike Holewinski, who had 

previously supplied his signed agreement to an arbitration policy, plaintiff in 

this case never signed an agreement, or otherwise unmistakably agreed, at any 

time, to waive her rights to litigate discrimination claims in court. 9

Moreover, with all due respect to our colleagues in Jaworski, we cannot 

reconcile the panel's analysis with the Supreme Court's mandate in Leodori for 

an "explicit, affirmative agreement that unmistakably reflects [an] employee's 

 

9 We note that, as an alternative to an appropriately-designed click, it would 

have sufficed for Pfizer to have utilized a "touch screen" or other electronic 

method for employees to supply their signatures in electronic form.
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assent" to arbitration, 175 N.J. at 303, and "concrete proof" of a waiver of an 

employee's rights to a jury trial and to litigate discrimination claims in court. 

Id. at 307.

The sixty-day provision here is the company's unilateral declaration. In 

essence, it is an attempt to bypass the evidential requirements of Leodori, so that 

employees who do not communicate their voluntary agreement to the arbitration 

policy will be imagined to have provided such agreement if they keep reporting 

to work for longer than two months. The provision, which is set forth on the 

very same acknowledgment slide we have found to be inadequate, unacceptably 

circumvents the Supreme Court's tenets. It also makes the clicking process on 

the module, even if that process had comported with our law's mutuality and 

waiver requirements, essentially redundant or meaningless after sixty days.

Unless and until the Supreme Court alters its precedent in Leodori, we 

respectfully decline to follow our sister panel's ruling in Jaworski. The sixtyday provision, in the absence of separate evidence – apart from continued 

employment – of the employee's affirmative assent to be bound by the arbitration 

policy, does not salvage defendants' position.10

 

10 At oral argument on appeal, we posed to defense counsel the hypothetical of 

whether a placard displayed by a company at its employee entrance announcing 

such a sixty-day "deemer" would be sufficient to substantiate an employee's 

agreement to arbitrate, if employees entering the building were instructed to read 

the placard before heading to their work stations. Defense counsel did not 
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Our legal conclusion should not be misread as signifying any views about 

the public policies that relate to binding arbitration of employment claims. We 

respect and adhere to the guidance of the FAA and the Supreme Courts of the 

United States and of this State on the subject. We simply apply established 

precedent in holding that the employer in this case did not do enough to obtain 

its employees' agreement to arbitrate. With some modest changes, the employer 

should be able to do so in the future.

Lastly, we note that, at the oral argument, defense counsel alerted us to a 

recent November 2018 unpublished opinion of a federal district judge in 

Pennsylvania who upheld Pfizer's arbitration policy, based on an employee's 

continued service for more than sixty days after receiving the training module. 

We do not cite to that unpublished opinion, see Rule 1:36-3, nor do we choose 

to follow it. The case involved the application of Pennsylvania contract law and 

did not, as here, require adherence to New Jersey law, including our State 

Supreme Court's decisions in Leodori and Atalese that robustly prescribe 

explicit and unmistakable expressions of mutual assent to arbitrate.

 

believe offhand that such a placard procedure would be legally inadequate. We 

have doubts such a procedure would comport with Leodori.
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For these reasons, the trial court's order compelling arbitration is reversed 

and the case is restored to the Law Division's docket.11

Reversed.

 

11 In light of our ruling, we need not reach other arguments raised by plaintiff.