This mutual agreement is a contract and covers important issues relating to your rights. It is your sole responsibility to read it and understand it. You are free to seek assistance from independent advisors of your choice outside the Company or to refrain from doing so if that is your choice.
This Mutual Arbitration Agreement ("Agreement") is between Application or Employee (hereinafter "EMPLOYEE") and Sheraton Caregiver LLC and its respective successors and assigns ("Sheraton Caregiver/Care"). The Federal Arbitration Act (9 U.S.C. §§ 1et seq.) governs this Agreement. The parties understand and agree that the COMPANY is engaged in transactions involving interstate commence. EXPET AS THIS AGRREMENT OTHERWISE PROVIDES, ALL DISPUTES COVERED BY THIS AGREEMENT WIL BE DECIDED BY AND ARBITRATOR THROUGH FINAL AND BINDING ARBITRATION AND NOT BY WAY OR COURT OR JURY TRIAL.
1. Covered claim/ Dispute. Except as otherwise provided in this Agreement, this Agreement applies to any and all disputes, past, present or future, that may arise between Employee (sometimes “you” or “your”) and Sheraton Caregiver/Care, including without limitation any dispute arising out of or related to EMPLOYEE'S application, employment and/or separation of employment with Sheraton Caregiver/Care. This Agreement applies to a covered dispute that Sheraton Caregiver/Care may have against EMPLOYEE or that EMPLOYEE may have against Sheraton Caregiver/Care, its parent companies, subsidiaries, related companies and affiliates, franchisors, or their officers, directors, principals, shareholders, members, owners, employees, and managers or agents, each and all of which may enforce thNothing contained in this Agreement shall be construed to prevent or excuse you (individually or in concert with others) or the Sheraton Caregiver/Care from utilizing the Sheraton Caregiver/Care's existing internal procedures for resolution of complaints, and this Agreement is not intended to be a substitute for the utilization of such procedures. In addition, either party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy in accordance with applicable law, and any such application shall not be deemed incompatible with or waiver of this agreement to arbitrate. The court to which the application is made is authorized to consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law. All determinations of final relief, however, will be decided in arbitration.is Agreement as direct or third-party beneficiaries.
The claims subject to arbitration are those that absent this Agreement could be brought under applicable law. Except as it otherwise provides, this Agreement applies, without limitation, to claims based upon or related to the application for employment, background checks, privacy, the employment relationship, discrimination, harassment, retaliation, defamation (including claims of post-employment defamation or retaliation), breach of a contract or covenant, fraud, negligence, emotional distress, breach of fiduciary duty, trade secrets, unfair competition, wages, minimum wage and overtime or other compensation claimed to be owed, breaks and rest periods, expense reimbursement, seating, termination, tort claims, equitable claims, and all statutory and common law claims unless specifically excluded below. Except as it otherwise provides, the Agreement covers, without limitation, claims arising under the Fair Credit Reporting Act, Defend Trade Secrets Act, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, the Fair Labor Standards Act, Rehabilitation Act, the Civil Rights Acts of 1866 and 1871, the Civil Rights Act of 1991, 8 U.S.C. § 1324 (unfair immigration related practices), the Pregnancy Discrimination Act, the Equal Pay Act, the Genetic Information Non-Discrimination Act, Employee Retirement Income Security Act of 1974 (except for claims for employee benefits under any benefit plan sponsored by the Sheraton Caregiver/Care and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefit Protection Act of 1990, False Claims Act, Occupational Safety and Health Act, Consolidated Omnibus Reconciliation Act of 1985, and state statutes or regulations, if any, addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to Employee’s employment or the termination of employment.
Additionally, except as provided in this Section 3 of this Agreement, Employee and the Sheraton Caregiver/Care agree that the arbitrator shall have exclusive authority to resolve any dispute relating to the scope, validity, conscionability, interpretation, applicability, or enforceability of this Agreement. Regardless of anything else in this Agreement or the AAA Rules (referenced below), any dispute relating to interpretation, applicability, enforceability or validity of the Class Action Waiver may only be determined by a court and not an arbitrator.
EMPLOYEE and Sheraton Caregiver/Care agree that EMPLOYEE'S acceptance of this Agreement is a condition of employment and that EMPLOYEE'S continued employment constitutes EMPLOYEE'S acceptance of the terms of this Agreement.
Excluded claims/disputes. The Agreement does not apply to: (i) claims for worker’s compensation benefits, state disability insurance or unemployment insurance benefits; however, this Agreement applies to retaliation claims related to such benefits, such as claims for worker’s compensation retaliation; and (ii) disputes that an applicable federal statute expressly states cannot be arbitrated or subject to a pre-dispute arbitration agreement.
Nothing contained in this Agreement shall be construed to prevent or excuse you (individually or in concert with others) or the Sheraton Caregiver/Care from utilizing the Sheraton Caregiver/Care's existing internal procedures for resolution of complaints, and this Agreement is not intended to be a substitute for the utilization of such procedures. In addition, either party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy in accordance with applicable law, and any such application shall not be deemed incompatible with or waiver of this agreement to arbitrate. The court to which the application is made is authorized to consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted by applicable law. All determinations of final relief, however, will be decided in arbitration.
Nothing in this Agreement prevents you from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, Occupational Health and Safety Administration or the Office of Federal Contract Compliance Programs or law enforcement agencies. Nothing in this Agreement prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Agreement. This Agreement also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Agreement. Nothing in this Agreement prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. The Sheraton Caregiver/Care will not retaliate against you for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act. This Agreement also does not prevent or prohibit you in any way from reporting, communicating about, or disclosing claims for discrimination, harassment, retaliation, or sexual abuse or a crime, or from making truthful statements as required by law.
Exclusion for Current Employees Only: This Agreement also does not apply to litigation between you and the Sheraton Caregiver/Care pending in a state or federal court or arbitration as of the date of your receipt of this Agreement and in which you are a party or a member or putative member of any alleged class or collective action (“pending litigation”). However, if that pending litigation is subject to a prior or existing agreement to arbitrate between you and the Sheraton Caregiver/Care, that agreement to that extent will remain in full force and effect and continue to apply to the pending litigation (“pending litigation exclusion”).
2. CLASS AND COLLECTIVE ACTION WAIVER. This Agreement affects your ability to bring or participate in class and collective actions. Both you and Sheraton Caregiver/Care agree to bring any covered claim in arbitration on an individual basis only, and not on a class or collective action basis on behalf of others. There will be no right or authority for any dispute or claim to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective action proceeding, and the Arbitrator will have no authority to hear or preside over any such claim ("Class Action Waiver"). In the event a final judicial determination is made that the Class Action Waiver is unenforceable and that a class or collective action may proceed notwithstanding the existence of this Agreement, the Arbitrator is nevertheless without authority to preside over a class or collective action and, in that event, any class or collective action must be brought in a court of competent jurisdiction.
3. ARBITRATOR SELECTION. If the claim is not resolved via informal resolution, the parties will proceed to arbitration before a single arbitrator and in accordance with the then current American Arbitration Association (“AAA”) Employment Arbitration Rules (“AAA Rules”) (the AAA Rules are available through the Sheraton Caregiver/Care s Human Resources department, or may be found at www.adr.org or by searching for “AAA Employment Arbitration Rules” using a service such as www.Google.com), provided, however, that if there is a conflict between the AAA Rules and this Agreement, this Agreement will govern. Unless the parties mutually agree otherwise, the Arbitrator will be either an attorney experienced in employment law or a retired judge from any jurisdiction. The AAA will give each party a list of eleven (11) arbitrators drawn from its panel of arbitrators. Ten days after AAA’s transmission of the list of neutrals, AAA will convene a telephone conference and the parties will strike names alternately from the list of common names, until only one remains. The party who strikes first will be determined by a coin toss. The person that remains will be designated as the Arbitrator. If for any reason, the individual selected cannot serve as the Arbitrator, AAA will issue another list of eleven (11) arbitrators and repeat the alternate striking selection process. If for any reason the AAA will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted to appoint a neutral Arbitrator.
4. INITIATING ARBITRATION. A party who wishes to arbitrate a claim covered by this Agreement must make a written Request for Arbitration and deliver it to the other party by hand or mail no later than the expiration of the statute of limitations (deadline for filing) that applicable law prescribes for the claim. The Request for Arbitration shall identify the claims asserted, the factual basis for the claim(s), and the relief and/or remedy sought. The Arbitrator will resolve all disputes regarding the timeliness or propriety of the Request for Arbitration and apply the statute of limitations that would have applied if the claim(s) had been brought in court.
5. RULES/STANDARDS GOVERNING PROCEEDING. The Arbitrator may award any remedy to which a party is entitled under applicable law, but remedies are 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, and no remedies that otherwise would be available to an individual under applicable law will be forfeited by this Agreement. Each party can take the deposition of one individual witness and any expert witness designated by another party. Each party also has the right to make requests for production of documents to any party. The parties can jointly agree to more discovery, and either party can ask the Arbitrator to order more discovery. The Arbitrator will have exclusive authority to entertain requests for additional discovery, and to grant or deny such requests, based on the Arbitrator’s determination regarding whether additional discovery is warranted by the circumstances of a particular case. Each party will also have the right to subpoena witnesses and documents for the arbitration, including documents relevant to the case from third parties in accordance with any applicable state or federal law. At least thirty (30) days before the final hearing, the parties must exchange a list of witnesses, excerpts of depositions to be introduced, and copies of all exhibits to be used.
Unless the parties jointly agree in writing otherwise, the arbitration will take place in or near the city and in the same state in which Employee is or was last employed by the Sheraton Caregiver/Care. The Arbitrator shall apply the substantive federal, state, or local law applicable to the claims asserted. The Federal Rules of Evidence shall apply. The Arbitrator has the authority to hear and rule on pre-hearing disputes. Either party may file dispositive motions, including, without limitation, a motion to dismiss and/or a motion for summary judgment, and the Arbitrator will apply the standards governing such motions under the Federal Rules of Civil Procedure. Upon the request of either party, the Arbitrator will set a briefing schedule for such motions. The Arbitrator will issue a written decision or award, stating the essential findings of fact and conclusions of law. A court of competent jurisdiction will have the authority to enter judgment upon the Arbitrator’s decision/award.
6. PAYMENT OF FEES. The Sheraton Caregiver/Care will pay the Arbitrator’s and arbitration fees and costs, except for the filing fee as required by the AAA. If you are financially unable to pay a filing fee, the Sheraton Caregiver/Care will pay the filing fee, and you will be relieved of the obligation to pay the filing fee. Disputes regarding the apportionment of fees will be decided by the Arbitrator. Each party will pay for its own costs and attorneys' fees, if any, but if any party prevails on a claim which affords the prevailing party costs or attorneys' fees, the Arbitrator may award costs and fees to the prevailing party as provided by law.
7. RIGHT TO CONSULT WITH ATTORNEY. You have the right to consult with counsel of your choice concerning this agreement. After 30 days of your first receipt of this Agreement, continuing your employment with the Sheraton Caregiver/Care constitutes mutual acceptance of the terms of this Agreement by you and the Sheraton Caregiver/Care.
8. ENTIRE AGREEMENT/SEVERABILITY. Except as provided in Section 2, above regarding pending litigation, this Agreement replaces all prior agreements (oral, written, electronic) regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Agreement. If any portion of this Agreement is deemed invalid, void, voidable or otherwise unenforceable, the unenforceable provision will be severed from the Agreement and the remainder of the Agreement will be enforceable. This Agreement will survive the termination of Employee’s employment and the expiration of any benefit. This Agreement will also continue to apply notwithstanding any change in Employee’s duties, responsibilities, position, or title, or if Employee transfers to any affiliate of the Sheraton Caregiver/Care. This Agreement does not alter the "at-will" status of Employee’s employment. Notwithstanding any contrary language in any Sheraton Caregiver/Care policy or employee handbook, this Agreement may not be modified or terminated absent consent by both parties.
9. CONSIDERATION. The Sheraton Caregiver/Care and Employee agree that the mutual obligations by the Sheraton Caregivers/Care and Employee to arbitrate disputes provide adequate consideration for this Agreement.