E-Mailing Company Employment Policy Was Not Enough --Even When the Employee Opened It!
January, 2005
Q. Does your company use its electronic intranet to announce employment policy changes?
Q. Is your company moving toward, or is it already, a “paperless” business?
If you answered “yes” to either question, please read on.
At least one federal court recently has held that, even where an employee had opened the e-mail, it wasn't sufficient to establish that the workplace policy was received, reviewed and binding on the employee. Campbell v. General Dynamics Government Systems Corp.
Facts
The company, General Dynamics, established a mandatory arbitration policy which covered all employment related claims and disputes. The company announced the policy to all its employees via an e-mail message. The subject line of the e-mail message indicated it was a letter from the company's president regarding “new dispute resolution policy.” At the end of the email, the company stated that the dispute resolution policy was an essential element of the employment relationship. The e-mail also contained two hyperlinks, one to the actual policy and the other to the company's handbook.
The company's “tracking log” indicated that the employee, plaintiff, had opened the e-mail message two minutes after it was sent.
The employee, plaintiff, suffered from sleep apnea (not from reading the e-mail). Due to his apnea, it was impossible for him to wake up in the mornings. The condition also caused episodes of sleep during the day. The employee was terminated approximately eight months after the dispute resolution policy was circulated via the company intranet. The employee alleged that the termination was due to his sleep apnea which he claimed to be a disability.
The case initially was brought before the state Human Rights Commission but it was removed to federal court. The company then moved to stay all court proceedings so that the matter might be arbitrated in accordance with the dispute resolution policy. The court denied the motion to compel arbitration, pointing out several flaws in the method by which the company e-mailed its new dispute resolution policy.
Court Criticizes Company
The court's criticisms included:
1. Nowhere in the e-mail heading was there any indication of its critical importance;
2. Nor did it indicate that the policy would change employees' legal rights;
3. It was not until the fifth paragraph of the e-mail that there was mention that the policy was an essential element of employment;
4. The actual policy was not on the face of the e-mail; the employee had to go to a hyperlink to read the policy;
5. No evidence existed to show the employee either clicked on the hyperlinks or that he read the text of the e-mail.
Analysis Of Decision
An important issue in the case was the fact that the company policy was aimed at taking away an employee's right to a trial by jury. And, notably, the company did not send a paper copy of the policy to employees. Therefore, statutory and common law notice provisions related to submitting to arbitration and giving up a federal trial by jury were important considerations in the case.
However, the Achilles heel of the company's e-mail distribution was that it failed to provide an electronic procedure for proving that the employee had read and acknowledged the policy.
The court's concern with this was based on its realistic observation of what many employees do when they receive an e-mail at work.
“E-mail is certainly an inexpensive and convenient means of notification. But those same blessings bring with them drawbacks. Whether used for work or for personal reasons, most users of e-mail inevitably receive incredible volumes of messages. It is often hard to distinguish the important from the frivolous. It is not surprising that Campbell reported that he received between 10 and 100 daily, many of which were ‘mass e-mails…relating to company functions, birthdays and anniversary announcements, and other trivial sellers.' The 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. Under those circumstances, to presume that Campbell read the text of the e-mail, clicked on its links, and read the linked documents, and 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.”
In short, the court in the Campbell decision expected the company to engage in the same practice that cautious employers engage in when distributing paper copies of employment policies. As such, the case is a good reminder of what your company should be doing no matter what medium (electronic or paper) it uses to distribute an employment policy.
Practice Tips
•Key points should be mentioned in the subject line of the e-mail and first paragraph.
•Mention any rights, privileges or benefits lost or gained in the first paragraph or subject line.
•Maintain an electronic log to prove receipt of the e-mail.
•Require return e-mail to confirm that the employee has read the message and any attachments and understands the implications. Require a reply such as “I accept.”
•Avoid hyperlinks. If possible, opt for putting the text items in the e-mail message.
•Monitor access to internal websites.
Conclusion
As a word of caution when preparing to send important employment policy announcements, please remember that you might find yourself before a court that “will not assume that [the employee] was aware of the e-mail contents simply because he clicked to open it.”
For more information on this topic, please contact Jim Barber at jbarber@clausen.com.
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