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No Arbitration Opt-Out for Ex-Employee

A former employee in defendant wholesale club’s tire bay who claims he was fired for allegedly threatening an­other employee who made vulgar and racially derogatory comments about plaintiff on Facebook must arbitrate his employment dispute, as he did not opt out of employer’s four-step “Open Door Solutions Arbitration Agreement.”

Dispute resolution

In April and May 2013, defendant ad­opted the Open Door Solutions program to serve as a four-step dispute resolu­tion system. Steps one, two and three of the Open Door solution program at­tempt to resolve employment-related disputes internally. Step four requires the parties to submit to binding arbi­tration. At the time of its implemen­tation, defendant allowed each of its employees to opt out of the Open Door Solutions Arbitration Agreement.

Since its implementation, defendant informs all new employees about the Arbitration Agreement and gives them an opportunity to opt out. New employ­ees have an opportunity to opt out of the Arbitration Agreement by complet­ing an opt-out form and returning it to defendant’s Office of Open Door Solu­tions within 30 days. Neither party con­tests that this plaintiff did not opt out.

The court finds plaintiff ’s claims are subject to binding arbitration pursuant to the Federal Arbitration Act because the Arbitration Agreement pertains to current and former employees; plaintiff makes no showing of unconscionability; and any breach by defendant does not render the Arbitration Agreement un­enforceable.

The Agreement expressly provides that it continues after employment with defendant ends and applies to any dispute “arising out of or relating to any aspect” of his job. The plain meaning of these clear and unambiguous terms shows that the Agreement applies to employment-related claims of both cur­rent and former employees.

The Agreement is neither procedur­ally nor substantively unconscionable. This court recognizes that plaintiff was likely required to sign the Acknowl­edgement along with his other initial employment paperwork. At best, he was not afforded an opportunity to read and understand the arbitration informa­tion until later that evening. However, these facts in and of themselves do not constitute procedural unconscionabili­ty. Further, the Agreement allows both parties to participate in the selection process of a neutral arbitrator from the American Arbitration Association, and that the arbitration hearing would be held within 50 miles of plaintiff ’s last place of employment, unless the parties agree otherwise. Employer agrees to pay the costs of arbitration, except that each party is responsible for filing fees, attorney’s fees and incidental costs.

The court grants the motion to com­pel arbitration and dismisses the ac­tion without prejudice.

Hawthorne v. BJ’s Wholesale Club (Lauck) No. 3:15cv572, Aug. 26, 2016; USDC at Richmond, Va.; Mary A. Carlin for defendant. VLW 016-3-404, 13 pp.

VLW 016-3-404

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