What’s the “Mailbox Rule” for Email?

In the context of an emailed arbitration agreement, the U.S. Court of Appeals for the Fifth Circuit recently explained how an employer can demonstrate that an employee has received an electronic communication.

In Gezu v. Charter Communications, the company sent an email to all non-union employees to announce a new employment dispute resolution program involving an arbitration agreement. The email stated that unless the employee opted out of the program within the next 30 days, they would be enrolled in the program. The email contained a link to the full agreement, as well as further information about the program and instructions on how to opt out, on the company’s intranet. An employee filed a discrimination lawsuit, and the company moved to compel arbitration.

The Fifth Circuit granted the motion to compel arbitration, despite the employee’s argument that he had never read the email. Under applicable state (Texas) law, the employer can show that an arbitration agreement is an enforceable modification of the terms of the employee’s employment if it can demonstrate that the employee received notice of the change and accepted the change. The mailbox rule comes into play where there is a dispute about receipt of notice. Under the mailbox rule, “‘[a] sworn statement is credible evidence of mailing’ and creates a presumption of receipt.” In the present case, both the VP of HR Technology and the Senior Director of Records submitted declarations that the company had sent and the employee had received and opened the email. The Fifth Circuit found such declarations to create the presumption of receipt.

It is important for employers who wish to create enforceable arbitration (and other employment-related) agreements with current employees to understand what are the state law requirements for such agreements. In particular, it may be possible to use email to create an enforceable agreement – but certainly employers must be able to demonstrate that the email contained sufficient notice of the agreement in question, and that the employee received and opened the email. Employers should consult with counsel when considering implementation of such agreements