Important Lessons From The Ninth Circuit's Rickes v. Thermo Fisher Decision
On August 5, 2026, the Ninth Circuit provided very concise guidance to ensure the enforcement of arbitration agreements between employers and employees in Rickes v. Thermo Fisher Scientific, Inc.
In sum, arbitration agreements conditioned on continuing employment that are sent to employees will not be enforced unless an employer provides evidence of assent.
In Rickes, the employer relied on the employee’s failure to opt out of arbitration within forty-five days of receipt of the agreement, and continuing his employment. However, fatal to enforcement, the employer did not provide any evidence that the employee executed the agreement, read the agreement, “otherwise interacted with the arbitration materials” or even viewed or opened the email with the link to the agreement. Rickes testified that he did not remember receiving any communications about the arbitration agreement and had never seen it before the lawsuit.
The Court reiterated that contract formation requires both notice and mutual assent, and that "silence alone does not constitute assent." The Court identified assent in electronic transactions as inferred from affirmative conduct such as "clicking buttons," "checking boxes," or otherwise interacting with the terms.
The Lesson: A blast email and a passive opt-out period will not support “assent” to enforce an arbitration agreement in employment. Thus, the employer attempting to enforce an arbitration agreement will need to provide evidence that the employee actually did something to agree to its terms, such as a signature, “click” agreement or affirmative evidence that the employee had reviewed the terms of the agreement and continued with employment.
Best Practices for Employers Include:
Employers seeking to enforce arbitration agreements distributed by email should ensure that proof of electronic agreement is maintained and available should the agreement be challenged:
- Capture an electronic signature or signed acknowledgment. A signed acknowledgment confirming receipt of the arbitration agreement was one of the very things the court said the employer here lacked, or a “click” agreement. Be aware that employees will challenge the “authenticity” of electronically signed agreements, too.
- Log and retain the electronic trail. At a minimum maintain, records showing the employee opened the email, as well as any records showing that the employee viewed the terms even if the employee did not click or electronically sign the agreement where continuing employment is consideration for the agreement.
- Audit existing employee populations now. Many employers emailed agreements and did not collect signatures to avoid confronting non-signing employees about the lack of signature for many valid reasons. Employers should consult with counsel about a review of their systems to determine whether there is evidence that the employee opened email containing the agreement, email describing the terms, and/or “interacted with the agreement” before continuing to be employed and maintaining such evidence in the event of future litigation. And, it is an opportunity to cure any situation where such evidence can’t be located.
Arbitration agreements that include an agreement not to participate in class action litigation are important tools to controlling litigation exposure. Litigation over the enforceability of arbitration agreements is on the rise in California and arbitration agreements that are even two or three years old should be reviewed by counsel to best ensure enforcement. And, as Rickes demonstrated, an arbitration agreement is only as good as the ability to prove the employee assented to it under California contract law -- delivery is not enough.
Please contact Dan M. Forman, or your favorite CDF attorney, to review any arbitration agreement or if you have questions about conducting an audit or rollout of an electronic arbitration agreement.
