Unreported / Non-Citable
Background
Scott Rickes sued Thermo Fisher Scientific for age discrimination and related California employment claims. Thermo Fisher sought arbitration under a mutual dispute-resolution agreement it had distributed to employees through four emails in 2019. The program stated that employees would accept arbitration unless they opted out within 45 days.
Thermo Fisher’s electronic records did not show that Rickes opened the messages, clicked the agreement link, or otherwise interacted with the materials. Rickes declared that he received a large volume of work email, did not remember the messages, and had never seen the agreement before the lawsuit. The district court found no contract and denied arbitration.
The Court’s Holding
The Ninth Circuit affirmed. Under California contract law, an employer seeking arbitration must prove notice and an objective manifestation of mutual assent. Silence alone ordinarily is not acceptance, and an employee’s continued work does not establish assent when there is no evidence the employee reviewed or acknowledged the new arbitration terms.
The panel distinguished cases involving signed acknowledgments, undisputed review, or an existing employment agreement that expressly authorized arbitration. Thermo Fisher proved only that it sent emails and that Rickes did not opt out. Without affirmative conduct such as clicking, checking a box, signing, or otherwise interacting with the terms, it did not prove an agreement by a preponderance of the evidence.
Key Takeaways
- Email delivery alone may not prove that an employee accepted arbitration.
- An opt-out structure does not eliminate the need for objective evidence of notice and assent.
- Employers should capture a signed or electronic acknowledgment and retain reliable audit records.
- Continued employment is stronger evidence only when the employee knowingly received terms making continued work an acceptance.
Why It Matters
California employers rolling out arbitration programs electronically should require an affirmative step and preserve proof of it. A system that records only outbound email and employee silence risks leaving the employer unable to compel arbitration. Employee counsel should request delivery, opening, click-through, acknowledgment, and policy-version records before conceding formation.