The state Supreme Court heard arguments Monday on whether Pfizer provided a former employee sufficient language in an emailed document to require that she resolve all company issues through arbitration as opposed to litigation.

In Skuse v. Pfizer, the justices are considering whether to uphold the Appellate Division's ruling from January 2019 that plaintiff Amy Skuse didn't assent to the arbitration agreement with Pfizer because the term "acknowledge" next to the click box did not rise to the level of "agree." The appeals panel ruled it simply wasn't enough.

"The issue at hand is the language: Do you acknowledge? What does that mean here?" Chief Justice Stuart Rabner observed aloud, as arguments got underway at the Richard J. Hughes Justice Complex.

Justice Barry Albin asked Pfizer's attorney, Thomas Linthorst of Morgan, Lewis & Bockius' Princeton office, whether the court was being asked to treat arbitration agreements differently from other waiver-of-rights cases.

"The state has the power to regulate a wide range of contracts that aren't protected by federal statutes," Linthorst said, looking directly at Albin. "But arbitration agreements are protected by federal statutes."

Linthorst added: "The Plain Language Act does not apply to every arbitration agreement, but the waiver-of-rights agreement does."

To which Justice Jaynee LaVecchia asked: "Does the Appellate Division decision put more pressure on the employer—like your client—to terminate employees if they don't agree with the provision?"

"'If you want to keep working here, here are the terms and conditions,'" Linthorst said. "So [the employer] put the decision in the hands of the employee—you decide if you want to keep working here."

Linthorst said, "If email is the traditional manner of communication between employer and employee—and the employer gives reasonable notice—I think the employee is obligated to … the employer gave them the opportunity … to acknowledge the arbitration agreement."

Justice Anne Patterson queried Linthorst: "Was this really training? I know they considered it module training."

"I think it's fair to say that," Linthorst said. "This was a training platform. This was the platform by which [employees] got important communications. The emails are about arbitration in the subject line. It's all about arbitration. There was no confusion about what we were talking about. … It was not about parking spaces."

Pfizer's use of a computer training program to obtain employees' agreement to binding arbitration of work disputes was ruled inadequate by the Appellate Division a year ago.

Skuse, a flight attendant for Pfizer, sued the company after she was fired for refusing to receive a yellow fever vaccine. Pfizer policy required its flight attendants to receive vaccines, but Skuse, a practicing Buddhist, maintains that she does not receive injections containing animal protein, according to court documents.

Skuse requested a religious accommodation from the vaccine requirement, but the company refused and dismissed her. Skuse sued Pfizer and several individuals in Mercer County Superior Court. There, Judge Kay Walcott-Henderson granted Pfizer's motion to dismiss the suit and referred the matter to binding arbitration since Skuse had been with the company beyond 60 days, which Walcott-Henderson concluded meant she was intent on being bound by the agreement.

Skuse appealed, and Appellate Division Judges Jack Sabatino, Michael Haas and Stephanie Ann Mitterhoff reversed on Jan. 19, 2019. The appeals court said employers seeking to institute a mandatory arbitration policy for job-related disputes still must obtain their employees' knowing and explicit assent, even where the policy is disseminated electronically rather than on paper.

In this case, Pfizer used email to announce to its nearly 28,000 employees the company's new, mandatory arbitration policy. The policy was presented on a series of slides on computer screens, with the third slide asking employees to "acknowledge" the policy with a click, according to the documents.

The program declared that anyone who did not click the acknowledgment but continued to work for the company for 60 days was "deemed" to be bound by the arbitration policy.

The appeals panel said Pfizer's use of the labels, "training module" and "training activity" was misleading. It further said the click box at the end of the presentation, which uses the word "acknowledge," rather than "agree," was ambiguous. The panel said the wording could be reasonably misunderstood "as something short of an agreement." The court applied a 2003 Supreme Court ruling, Leodori v. CIGNA, which held that an employee's waiver of rights results only from an "explicit, affirmative agreement."

On Monday, David Kott represented three amici in support of Pfizer: the New Jersey Business & Industry Association, the Commerce and Industry Association of New Jersey, and the New Jersey Chamber of Commerce.

Kott of McCarter & English in Newark called the case "of great public importance to New Jersey's business community."

"The heightened requirement for establishing mutual assent to arbitration that was applied by the Appellate Division violates the Federal Arbitration Act," Kott told the court. "The decision in this case did not put arbitration agreements on equal footing with other contracts and creates undeniable hurdles to the formation and enforcement of arbitration agreements in the employment context."

Patterson asked Kott if he thought there were better ways to communicate arbitration agreements with employees rather than putting them on training modules.

"When dealing with some 28,000 employees, it becomes cumbersome to put on paper," Kott said.

"Do you believe the Appellate Division took Leodori and expanded it?" asked LaVecchia.

Kott said, "I do."

Andree Laney, legal adviser to the New Jersey Association of Employers, said the appellate panel's reasoning "cannot stand because it directly conflicts with" the FAA.

"The Appellate Division's decision violated federal law and misapplied state law," Laney said. "In this case, plaintiff unmistakably assented to arbitrate disputes when she continued her employment. Like any at-will employee, plaintiff had the option of leaving the company.

"Instead, she clearly manifested her assent to arbitration by continuing her employment, a condition she clearly and expressly acknowledged."

Laney said Pfizer has the right to create policy unilaterally.

"Private employers are not required to negotiate terms and conditions," Laney said. "Ms. Skuse was afforded the opportunity to learn what she was subject to along with 28,000 employees at Pfizer.

"Arbitration is lawful. Employers can set policy. An employee is given an opportunity of up to 60 days after accessing the training module. You can challenge it, take it to your lawyer, reread it, or the option, you can resign," Laney said.

But Skuse's attorney, Alan Schorr of Schorr & Associates in Cherry Hill, said the Appellate Division "hit the nail on the head," and its decision should stand. He said his client and Pfizer had a bilateral contract.

"This case exemplifies an inadequate way for an employer to go about extracting from its employees an agreement to submit to binding arbitration for future claims and thereby waive their rights to sue the employer and seek a jury trial," Schorr said in his opening remarks.

"But the United States and New Jersey Constitutions are also public policy, and our constitutions guarantee the right to a jury trial," Schorr said. "Our constitutions also guarantee freedom of religion. And New Jersey also has a very strong policy favoring the eradication of the cancer of discrimination."

Schorr drove this point home: there was never an enforceable contract nor a meeting of the minds between Skuse and Pfizer.

"She was never asked to agree, she never agreed," Schorr said. "Hence, there is no basis upon which this court can find an enforceable contract.

"Here an employer is asking an employee to waive her statutory rights to hear her case before a jury of her peers. She never assented to that," Schorr said.

William Wright of the Wright Law Firm in Stafford Township presented a brief on behalf of the New Jersey Association for Justice in support of Skuse, as did the National Employment Lawyers Association of New Jersey.

"You can assent—agree to give up a right that is clear and unmistakable," Wright told the court. "The employee was not given that opportunity in this case."

Albin asked if the employee stayed with the company beyond 60 days, as Skuse did, does that fit the definition of "acceptance by performance?"

"Employees should be given the opportunity to imply their intent not simply by showing up for work," Wright said.

"The Supreme Court's holding in Leodori does not permit an employer to be the party that controls and gives the employee's assent," said Richard Schall of Schall & Barasch, the last to present on behalf of NELA-NJ.

"Rather, if Leodori is to have any meaning, and for an agreement to arbitrate to be formed, an employer must give its employees an opportunity to grant, or withhold, their assent," said Schall as the two-hour arguments concluded.