The Price Of Ambiguity
The U.S. District Court for the District of Massachusetts recently held that an employee who signed a receipt form on an e-mail for her employer waived her right to initiate class arbitration over certain working conditions. The employee, Bretta Karp, received an e-mail from her employer, CIGNA, alerting her to changes in CIGNA’s employee manual. The email contained a link to the handbook, and employees were cautioned by email that failing to sign an electronic receipt for the handbook could “impact” the employees’ “employment future” at CIGNA. That of course is a euphemism for “take it or leave it.”
According to CIGNA, while class arbitration wasn’t mentioned in the email, or in the handbook or handbook receipt, the handbook did tell employees that the text of other policies, procedures, and programs were available on CIGNA websites. Apparently, CIGNA’s policy on class arbitration could be cobbled together from all of that. The court didn’t totally buy that argument, but it did find that “there is no doubt that defendant did not agree to permit class arbitration.” Citing the recent case of AT&T Mobility LLC v. Concepcion, 131 S. Ct. 174 (2011), the court said class arbitration has to be consensual, and could not be forced on CIGNA.
The bottom line here is that CIGNA “won” this battle. Sort of. It’s probably hard to convince the folks there, who had to pay lawyers to file, brief and argue the motion that this was a win. Ambiguity allows cases to proceed in the first instance. So the point is that the preferred result is to avoid uncertainty as much as possible. And if you want your employees to agree to waive the ability to initiate class arbitration, then say that. And have them sign off on that waiver on the very same document if possible. Unless, of course, you like paying lawyers.