Question: We normally notify employees by email of policies and agreements that apply to them, which they can access by opening an attachment or clicking a hyperlink. How important is it for us to be able to prove an employee reviewed and agreed to these documents? Can we just keep a record of what we sent?
Answer: Unfortunately, no. If you want to hold employees accountable under your policies or if you want to enforce an agreement, then relying solely on a record that you sent the documents is unlikely to be much help. Policies and agreements are two separate concepts, though, and you have different options for each.
Policies can be one-way communications, as long as you can prove the employee received the policy and your communication method is reasonably understandable to the recipient. A policy may announce standards for employee conduct, explain procedures employees must follow, or describe company-provided benefits such as vacation. You don’t need employees’ agreement in order to apply your policies—you’re just letting them know what to expect. If employees refuse to comply, they will suffer the consequences. You simply need to be able to show that they were informed.
As proof that you communicated a policy, you could require employees to reply to your email to confirm receipt. Inevitably some people won’t reply so you’ll need to figure out the most efficient way to follow up and obtain documentation of their receipt. If an employee actively refuses to acknowledge a policy, don’t get worked up about it, just document your conversation and provide a copy to the employee. This could be in a follow-up email or it could be a handwritten notation on the acknowledgment page of an employee handbook saying “employee refused to sign” with the date and the printed name and signature of the person making the notation.
Agreements are a two-way street, because they are essentially contracts in one form or another. For a contract to be enforceable, there must be mutual agreement between the parties, and you must be able to prove it. Sending a contract to an employee via email won’t be enough on its own to establish mutual assent to its terms. This is especially true if you received no response whatsoever—silence is not acceptance when it comes to contracts. To enforce an agreement, you need documentary evidence showing the employee knowingly and voluntarily agreed to its terms.
No Mutual Assent, No Arbitration: Ninth Circuit Rejects Agreement Based on Unopened Emails
Recently the U.S. Ninth Circuit Court of Appeals ruled that an employee wasn’t bound by an arbitration agreement because the company failed to present evidence of mutual assent. There was no evidence to show that the employee reviewed the document or that he had any knowledge of the arbitration agreement’s contents. Instead, the evidence revealed that the employee didn’t open any of the four emails sent to him with a hyperlink to electronically review and sign the contract or opt out within 45 days. (He said he received lots of work emails and didn’t recall seeing those particular messages.) The company took no steps to personally follow up with the employee and confirm that he received the agreement and understood his timeline to sign or opt out. The Ninth Circuit further rejected the company’s assertion that the employee’s continued employment after receiving the emails amounted to mutual assent. The employee is therefore free to pursue his legal claims in the public court system rather than being forced into private arbitration (Rickes v. Thermo Fisher Scientific, Inc.(opens in new tab), 9th Cir, Aug. 2026).
Whether you’re documenting receipt of a policy or agreement to a contract, you should use a tracking system and personally contact employees who miss your stated deadline. Be prepared to provide a physical copy of the document for the employee’s consideration instead of relying solely on electronic means. Vigilant members, for further guidance, contact your Vigilant Law Group employment attorney.
If you’re not a Vigilant member and are looking for help on this topic or more, learn about Vigilant membership or reach out to use directly.
