Nowadays, e-mail and intranet are the most common methods of internal group communication for most companies. Specifically, many companies use mass e-mails and/or posting to their intranet to inform employees of a host of things, including changes to their employee benefit plans.
An example would be a company sending out a mass e-mail informing employees of a new or discounted employee benefit. Many employers do not fully appreciate the significance of such e-mails in that a notice similar to the one cited in the preceding example basically changes the terms of the employment contract between the company sending such notice and the recipient employee.
A case in point is a recent decision of the U.S. District Court for the District of Massachusetts, in which the court addressed the question of whether an employer can use e-mail to notify an employee of a new and mandatory employment policy. The court found that a mass e-mail alone was not enough to ensure a high level of notice and to communicate the significance of a new employment policy.
The plaintiff, Roderick Campbell, who suffered from sleep apnea, had been employed by one of the defendants, General Dynamics, from February 2000 until December 2002, when his employment was terminated. He sued his former employer, alleging that his termination was due to his disability and filed a charge of discrimination.
In November 2003, General Dynamics filed a motion asserting that the dispute was subject to its Dispute Resolution Policy (DRP), which became effective on May 1, 2001. The DRP barred Campbell from suing in court and subjected any dispute to mandatory arbitration. On this basis, the defendants asked the court to stay all federal court proceedings and force the plaintiff to arbitrate his claim.
The particulars of this case are noteworthy:
General Dynamics had sent a mass e-mail to all of its employees on April 30, 2001. Although the subject line contained the name of the company president, there was nothing indicating that the e-mail was of critical importance. The text was vague in its description of the DRP and made no mention at all of the impact the policy would have on employees’ rights to a judicial hearing. The e-mail contained two links, one to a summary of key provisions of the DRP and another to a 26 page handbook detailing the provisions of the DRP.
General Dynamics presented as evidence a “tracking log,” which indicated that the plaintiff opened the e-mail, but presented nothing to suggest that he clicked on either of the links to the DRP policies.
The court found that while an agreement to arbitrate does not have to be signed, it did find that an employee must at least have actual notice of the policy for it to be enforceable. After referring to several recognized methods of ensuring such notice, including regular mailing, office memoranda and office-wide meetings with sign-in sheets, the court found that “General Dynamics seemed to have done as little as it could to ensure their employees were informed of a program that substantially affected their employee’s legal rights.”
Also, noting the volume of e-mail received by most employees and the frivolous nature of much of it, the court made the following statement:
“Put simply, receiving an e-mail in a virtual mailbox is not the same as receiving a letter in a real mailbox. Showing that someone opened an e-mail is not the same as showing that they acknowledged it. There are a number of simple ways…that the sender of an e-mail can monitor what its recipient has done with it. General Dynamics chose only to utilize the most superficial of these. As a result, we know nothing about Campbell’s interaction with the e-mail and its attachments except for the fact that, according to General Dynamics’ tracking log, he opened it.”
Minimum Level of Notice
Based on the above, the court concluded that sending a mass e-mail, without more, fails to meet the minimal level of notice required. Moreover, the court found that the available e-mail technology could have been better utilized by General Dynamics through methods such as the company configuring its e-mail system to log when and if employees accessed the electronic links in the e-mail or to require an electronic signature or in a further alternative to ask for a return e-mail acknowledging receipt of the mass e-mail.
In short, the court held that when communicating important employment information to employees via electronic methods such as a company-wide e-mail, employers must ensure that adequate measures are taken so that employees are made aware of the importance of the content of the e-mail they are receiving.
A mass e-mail alone will not do — however, this does not mean that company e-mails or a posting to an intranet site should be disregarded when communicating important messages to employees. An employer simply needs to utilize existing tools to communicate the significance of the message being relayed and preferably put in place a method for recording individual acknowledgement of the content of the e-mail received.
Javad Heydary, an E-Commerce Times columnist, is a Toronto lawyer licensed to practice in both Ontario and New York and is the managing editor of Lawsof.com.
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