Legal Question in Business Law in Georgia
I would opt out, is this as scary as I think? I don�t work there I found it on a blog and there is a lot of folks that don�t know what to do.
ARBITRATION POLICY/AGREEMENT
Introduction
The Company, including Sears, Roebuck and Co., Kmart Corporation, Sears
Holdings Management Corporation, Sears Holdings Corporation, and all
subsidiaries, indirect subsidiaries, and affiliates of Sears Holdings
Corporation (collectively, the "Company") understands that employment-related
disagreements will arise from time to time. Accordingly, Company has adopted
this Arbitration Policy/Agreement ("Agreement"). Under this Agreement, and
subject to certain exceptions specified within the Agreement, all
employment-related disputes between you ("Associate") and Company that are not
resolved informally shall be resolved by binding arbitration in accordance with
the terms set forth below. This Agreement applies equally to disputes related
to Associate's employment raised by either Associate or by Company.
Accordingly, Associate should read this Agreement carefully, as it provides
that virtually any dispute related to Associate's employment must be resolved
only through binding arbitration. Arbitration replaces the right of both
parties to go to court, including the right to have a jury decide the parties'
claims. Also, this Agreement prohibits Associate and Company from filing,
opting into, becoming a class member in, or recovering through a class action,
collective action, representative action or similar proceeding.
If Associate does not wish to be bound by the Agreement, Associate must opt out
by following the steps outlined in this Agreement within 30 days of receipt of
this Agreement. Failure to opt out within the 30-day period will demonstrate
Associate's intention to be bound by this Agreement and Associate's agreement
to arbitrate all disputes arising out of or related to Associate's employment
as set forth below.
1. How This Agreement Applies
Except as it otherwise provides, this Agreement applies, without limitation, to
disputes regarding the employment relationship, trade secrets, unfair
competition, compensation, pay, benefits, breaks and rest periods, termination,
discrimination, or harassment and claims arising under the Uniform Trade
Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age
Discrimination in Employment Act, as amended, Family and Medical Leave Act,
Fair Labor Standards Act, Employee Retirement Income Security Act, Genetic
Information Non-Discrimination Act, and any and all state statutes addressing
the same or similar subject matters, and all other state or federal statutory
and common law claims ("Covered Claims").
This Agreement is intended to apply to and cover all such disputes that
Associate has against Company that Associate could otherwise file in court and
all such disputes Company has against Associate that Company could otherwise
file in court. This Agreement requires all such disputes to be resolved only
by an arbitrator through final and binding arbitration and not by way of court
or jury trial. The Arbitrator will not have the authority to determine whether
this Agreement or any portion of it is enforceable, revocable or valid. This
Agreement will continue to apply after Associate is no longer employed by
Company.
This Agreement does not alter the at-will nature of Associate's employment
relationship with Company. Nor is it intended to substitute for, or alter,
Company's existing internal procedures for resolving complaints. It does,
however, set forth rules and procedures for arbitration that apply with full
force and effect to both Associate and Company.
Both parties agree that this Agreement is enforceable under the Federal
Arbitration Act, 9 U.S.C. � 1 et seq. ("FAA"). If the FAA is found not to
apply, then this Agreement is enforceable under the laws of the state in which
Associate is employed. However, both parties agree that there will be no right
to bring any dispute covered by this Agreement as a class action, collective
action, or in a representative capacity.
2. What Is Not Covered By This Agreement
This Agreement does not apply to claims for workers compensation, state
disability insurance and unemployment insurance benefits. This Agreement also
does not preclude Associate from filing a claim or charge with a federal, state
or local administrative agency such as the Equal Employment Opportunity
Commission, the U.S. Department of Labor, or the National Labor Relations
Board. Further, nothing in this Agreement excuses either party from bringing
an administrative claim before a state or federal agency in order to fulfill
the party's obligation to exhaust administrative remedies before making a claim
in arbitration.
This Agreement also does not apply to claims for employee benefits under any
benefit plan sponsored by Company and covered by the Employee Retirement Income
Security Act of 1974 or funded by insurance; however, this Agreement does apply
to any claims for breach of fiduciary duty, for penalties, or alleging any
other violation of the Employment Retirement Income Security Act of 1974, as
amended, even if such claim is combined with a claim for benefits.
This Agreement also does not apply to any dispute that is within the
jurisdiction of, or amenable to resolution under, any valid collective
bargaining agreement with Company.
3. Pending Litigation
This Agreement does not apply in any way to any employment-related
single-plaintiff lawsuit or any employment-related class, collective or
representative action on file with any court as of April 2, 2012. This
agreement does apply, however, to all lawsuits that are filed after April 2,
2012.
4. Class Action Waiver, Collective Action Waiver, and Representative Action
Waiver
Associate and Company agree to bring any dispute in arbitration on an
individual basis only. Also, this Agreement prohibits Associate and Company
from filing, opting into, becoming a class member in, or recovering through a
class action, collective action, representative action or similar proceeding
in court.
Accordingly, if Associate does not opt out of this Agreement as set forth in
Section 11 below:
(a) There will be no right or authority for any dispute to be brought, heard,
or arbitrated as a class action ("Class Action Waiver"). The Class Action
Waiver shall not be severable from this Agreement in any lawsuit in which
(1) the complaint is filed as a class action and (2) the civil court of
competent jurisdiction in which the complaint was filed finds the Class Action
Waiver is unenforceable (and such finding is confirmed by appellate review if
review is sought). In such instances, the class action must be litigated in a
civil court of competent jurisdiction and not as a class arbitration.
(b) There will be no right or authority for any dispute to be brought, heard,
or arbitrated as a collective action ("Collective Action Waiver"). The
Collective Action Waiver shall not be severable from this Agreement in any
lawsuit in which (1) the complaint is filed as a collective action and (2) the
civil court of competent jurisdiction in which the complaint was filed finds
the Collective Action Waiver is unenforceable (and such finding is confirmed by
appellate review if review is sought). In such instances, the collective action
must be litigated in a civil court of competent jurisdiction and not as a
collective arbitration.
(c) To the extent permissible by law, there will be no right or authority for
any dispute to be brought, heard, or arbitrated as a private attorney general
action ("Private Attorney General Action Waiver"). The Private Attorney
General Action Waiver shall not be severable from this Agreement in any lawsuit
in which (1) the complaint is filed as a private attorney general action and
(2) the civil court of competent jurisdiction in which the complaint was filed
finds the Private Attorney General Action Waiver is unenforceable (and such
finding is confirmed by appellate review if review is sought). In such
instances, the private attorney general action must be litigated in a civil
court of competent jurisdiction and not as a private attorney general
arbitration.
Although Associate will not be retaliated against, disciplined or threatened
with discipline as a result of his or her filing of or participation in a
class, collective or private attorney general action in any forum, either party
may lawfully seek enforcement of this Agreement and the Class Action Waiver,
Collective Action Waiver, and Private Attorney General Action Waiver under the
Federal Arbitration Act and seek dismissal of such class, collective or private
attorney general actions or claims. Notwithstanding any other clause contained
in this Agreement, any claim that all or part of the Class Action Waiver,
Collective Action Waiver or Private Attorney General Action Waiver is invalid,
unenforceable, unconscionable, void or voidable may be determined only by a
court of competent jurisdiction and not by an arbitrator.
The Class Action Waiver, Collective Action Waiver and Private Attorney General
Action Waiver shall be severable when a dispute is filed as an individual
action and severance is necessary to ensure that the individual action proceeds
in arbitration.
5. Starting The Arbitration
The party wishing to bring any Covered Claim(s) against the other party must do
so in arbitration. To start the arbitration, the Associate must submit a
written demand for arbitration by certified mail sent to Legal Intake, Sears
Holdings Management Corporation, 3333 Beverly Road, B6-300A, Hoffman Estates,
IL 60179. In the case of a Company-initiated claim, Company shall notify
Associate of its initiation of the arbitration process by serving a demand for
arbitration upon Associate by certified and first class mail to Associate's
last known home address. Any demand for arbitration by either party shall
identify the parties, describe the legal and factual basis of the dispute, and
specifically state the remedy being sought. The demand must be sent within the
time limits that would apply to the party's claim if it were being resolved in
a court and not by arbitration. The sent date will be determined by the date
of postmark on the envelope in which the demand is mailed.
The arbitrator shall resolve all disputes regarding the timeliness or
sufficiency of the demand for arbitration. A party may apply to a court of
competent jurisdiction for temporary or preliminary injunctive relief in
connection with an arbitrable controversy, but only upon the ground that the
award to which that party may be entitled may be rendered ineffectual without
such provisional relief.
6. Selecting A Neutral Arbitrator; Payment
(a) Selection by Mutual Agreement of the Parties. The Arbitrator shall be
selected by mutual agreement of Company and Associate. Unless Associate and
Company mutually agree otherwise, the Arbitrator shall be an attorney licensed
to practice in the location where the arbitration proceeding will be conducted
or a retired federal or state judicial officer who presided in the jurisdiction
where the arbitration will be conducted. The location of the arbitration
proceeding shall be no more than 45 miles from the unit where Associate last
worked for Company, unless each party agrees in writing otherwise.
(b) Selection When Parties Cannot Mutually Agree. If the parties have not
agreed upon an arbitrator within 30 days of service of the arbitration demand,
then Company will file the initiating party's demand with JAMS. JAMS shall then
appoint an arbitrator who shall act under this Agreement with the same force
and effect as if the parties had selected the arbitrator by mutual agreement.
The location of the arbitration proceeding shall be no more than 45 miles from
the unit where Associate last worked for Company, unless each party agrees in
writing otherwise.
(c) Payment. If applicable law requires Company to pay the Arbitrator's fees,
then Company will pay such fees; otherwise, payment of fees shall be governed
by the rules of the organization that administers the arbitration. Where the
arbitration is conducted by an organization or arbitrator that does not have
rules pertaining to the payment of fees, the Company shall pay the arbitrator's
fees.
7. How Arbitration Proceedings Are Conducted
In arbitration, the parties will have the right to conduct adequate civil
discovery, bring dispositive motions, and present witnesses and evidence as
needed to present their cases and defenses. Any disputes in this regard shall
be resolved by the Arbitrator, provided, however, that to the extent discovery
and presentation of witnesses and evidence would be limited or unavailable
under applicable law if the dispute were brought in court, such limitations
shall also apply in arbitration.
Both parties will have the right to be represented by an attorney in any
arbitration under this Agreement. However, neither party is required to be
represented by an attorney. Each party shall pay the fees for his, her or its
own attorneys, and any related expenses, including the expenses of witnesses
called by such party, depositions, or any other costs that would otherwise be
borne by a party were the claims brought in court, subject to any remedies to
which that party may later be entitled under applicable law.
If the arbitration is being administered by JAMS then the arbitration shall be
conducted according to JAMS Employment Arbitration Rules & Procedures
effective July 15, 2009. Notwithstanding anything in the JAMS rules, the
Arbitrator will not have the authority to determine whether this Agreement or
any portion of it is enforceable, revocable or valid. Additionally nothing in
the JAMS rules should be construed or interpreted to allow for class,
collective, or representative arbitration. If you are unable to access or
print the JAMS rules, you may obtain a printout of the rules from your Human
Resources representative or from your manager.
8. The Arbitration Hearing And Award
The parties will arbitrate their dispute before the Arbitrator, who shall
confer with the parties regarding the conduct of the hearing and resolve any
disputes the parties may have in that regard. Within 30 days of the close of
the arbitration hearing, any party will have the right to prepare, serve on the
other party and file with the Arbitrator a brief. The Arbitrator may award any
party any remedy to which that party is entitled under applicable law,
including an award of attorneys' fees, but such remedies shall be limited to
those that would be available to a party in his or her individual capacity in
a court of law for the claims presented to and decided by the Arbitrator. No
remedies that otherwise would be available to an individual in a court of law
will be forfeited by virtue of this Agreement. Within 30 days after the
submission of the briefs or as soon as possible thereafter, the Arbitrator will
issue a decision or award in writing, stating the essential findings of fact
and conclusions of law. Except as may be permitted or required by law, as
determined by the Arbitrator, neither a party nor an Arbitrator may disclose
the content or results of any arbitration hereunder without the prior written
consent of all parties. A court of competent jurisdiction shall have the
authority to enter a judgment upon the award made pursuant to the arbitration.
9. Non-Retaliation
It is against Company policy for any Associate to be subject to retaliation
because he or she exercises his or her right to assert claims under this
Agreement or participates in any way in an arbitration under this Agreement.
If Associate believes that he or she has been retaliated against by anyone at
Company, Associate should immediately report this by calling Human Resources
at 1-888-88Sears or the Ethics Hotline at 1-800-8ASSIST (1-800-827-7478).
10. Enforcement Of This Agreement
This Agreement is the full and complete agreement relating to the formal
resolution of Covered Claims. Except as stated in Section 4, above, in the
event any portion of this Agreement is deemed unenforceable, the remainder of
this Agreement will be enforceable. If the Class Action, Collective Action, or
Private Attorney General Action Waiver is deemed to be unenforceable, Company
and Associate agree that this Agreement prohibits any party from bringing a
class, collective or private attorney general action in arbitration.
11. Associate's Right To Opt Out
ACTION IS REQUIRED TO PROTECT YOUR LEGAL RIGHTS TO SUE COMPANY IN COURT AND/OR
TO PARTICIPATE IN ANY WAY IN A CLASS ACTION, COLLECTIVE ACTION, OR PRIVATE
ATTORNEY GENERAL ACTION.
Arbitration is not a mandatory condition of Associate's employment at Company,
and therefore an Associate who does not wish to be bound by the terms of this
Agreement may opt out by notifying Company in writing, using the "Arbitration
Policy/Agreement Opt Out Form" ("Form") that is attached at the end of this
Agreement. If Associate is unable to print it, Associate may also obtain a
print-out of the form from Associate' Human Resources representative or
manager. The Arbitration Policy/Agreement Opt Out Form must be signed, dated
and include Employee ID number. To be effective, the completed Form must be
returned to Sears Holdings Legal Intake, 3333 Beverly Road, B6-300A, Hoffman
Estates, IL 60179 or fax number 847-286-4511 within thirty (30) days of
Associate's receipt of this Agreement (the "Opt-Out Period"). Associate should
retain the fax confirmation sheet.
An Associate who timely opts out as provided in this paragraph will not be
subject to any adverse employment action as a consequence of that decision and
may pursue available legal remedies without regard to this Agreement. By not
opting out of this Agreement within the Opt-Out Period, Associate will be
deemed to have agreed to be bound by this Agreement, including the arbitration
provision and Class Action Waiver, Collective Action Waiver, and Private
Attorney General Action Waiver contained herein. Further, should Associate
choose to opt out of the Agreement, Associate acknowledges and agrees that
Company is no longer bound by the terms of the Agreement and may elect to bring
any Covered Claims it has against Associate in a court rather than in
arbitration. Associate has the right to consult with counsel of Associate's
choice concerning how this Agreement affects Associate's rights.
Arbitration Policy/Agreement Opt Out Form
I have reviewed the Arbitration Policy/Agreement, and I elect to opt out of the
Arbitration Policy/Agreement. I understand that there will be no adverse
employment action taken against me as a consequence of that decision. I
understand that this completed Opt Out Form must be returned within 30 days, as
provided in the Arbitration Policy/Agreement. The date of its return will be
determined by the date of the postmark on the envelope in which the form is
mailed. Alternatively, I may fax the form to the number indicated below, and
the date of return will be determined by the date the form is faxed. I will
retain a copy of the fax confirmation sheet.
By timely returning this signed and completed Opt Out Form, I understand that
the Arbitration Policy/Agreement will not apply to me or Company.
Name:_______________________________
Employee Identification Number (11-Digits):______________________
Note: You can find your Employee Identification Number next to your name on
the My Personal Information (MPI) website, or by calling 1-888-88SEARS.
Note: Please do not provide your Social Security Number (SSN).
Signature:____________________________
Date:________________________________
Please return this Opt Out Form to: Sears Holdings Legal Intake, 3333 Beverly
Road, B6-300A, Hoffman Estates, Illinois 60179, or fax number 847-286-4511.
If you fax this form, retain the fax confirmation.
1 Answer from Attorneys
Any intelligent employee would opt out.
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