In this agreement, the “Company” refers to M Pizza, Inc., and includes its parents, subsidiaries, affiliates, contractors, subcontractors, predecessors, successors and assigns, and its and their respective owners, directors, officers, managers, employees, and agents. The term “Employee ”refers to the individual whose signature and name appear on the last page of this Mutual Arbitration Agreement (“Agreement”), and includes anyone else who may assert a claim belonging to, obtained or derived from, or asserted on behalf of that individual.
In consideration of continued employment, the mutual promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Employee and Company do hereby mutually agree as follows:
1. Mutual Arbitration of Disputes. Except as otherwise provided herein, Employee and the Company, mutually acknowledge and agree that any and all disputes that may occur between Employee and Company arising out of, or related in any way to, Employee’s employment with the Company, performance of services to and for the Company, and/or termination of employment with the Company, including both pre-employment and post-employment conduct, shall be resolved exclusively through final and binding arbitration as set forth herein, except as prohibited by law.
2. Claims Subject to Arbitration. Without limitation of the foregoing, Employee and Company agree that any and all past, present, and future claims, disputes, controversies, and suits of any kind out of or relating to Employee’s employment by Company and/or the separation from that employment, including, but not limited to, any claims, disputes, controversies, or suits relating to, arising out of, based on, or connected with the following shall be subject to final and binding arbitration as set forth in this Agreement:
(i) compensation, salary, wages, overtime pay, tips, bonuses and/or commissions, including but not limited to any claim under applicable state, federal and local laws and/or regulations, each as may be amended from time to time; and/or
(ii) West Virginia compensation, salary, wages, overtime pay, tips, bonuses and/or commissions, including but not limited to any claim under applicable state, federal or local statutes or regulations, including but not limited to the West Virginia Wage Payment Collection Act; the West Virginia Equal Pay for Equal Work Act; the West Virginia Minimum Wage and Maximum Hours Act; the federal Fair Labor Standards Act (FLSA); and/or any other applicable state, federal and local laws and/or regulations, each as may be amended from time to time; and/or
(iii) Maryland compensation, salary, wages, overtime pay, tips, bonuses and/or commissions, including but not limited to any claim under applicable state, federal or local statutes or regulations, including but not limited to The Healthy Retail Employee Act, the Maryland Wage Payment and Collection Law, the Maryland Wage and Hour Law, the Maryland Healthy Working Families Act, and any other applicable law legally subject to arbitration; the federal Fair Labor Standards Act (FLSA); and/or any other applicable state, federal and/or local laws and regulations, each as may be amended from time to time; and/or
(iv) Virginia compensation, salary, wages, overtime pay, tips, bonuses and/or commissions, including but not limited to any claim under applicable commonwealth, federal or local statutes or regulations, including but not limited to the provisions of Virginia Code Title 40.1 (Labor and Employment); the federal Fair Labor Standards Act (FLSA); and/or any other applicable commonwealth, federal or local laws and regulations, each as may be amended from time to time; and/or
(v) Pennsylvania compensation, salary, wages, overtime pay, tips, bonuses and/or commissions, including but not limited to any claim under applicable commonwealth, federal or local statutes or regulations, including but not limited to the Pennsylvania Wage Payment and Collection Law, the Pennsylvania Wage and Hour Law, the Pennsylvania Equal Pay Law, the Pennsylvania Health Care Continuation Law (a.k.a. Mini-COBRA) and any other applicable law legally subject to arbitration; the federal Fair Labor Standards Act (FLSA); and/or any other applicable commonwealth, federal and/or local laws and regulations, each as may be amended from time to time; and/or
(vi) enforcement or breach of an oral or written contract, whether express or implied; and/or
(vii) any and all claims for liability in tort, including but not limited to misrepresentation, defamation and interference with prospective economic advantage, interference with contract, intentional and/or negligent infliction of emotional distress, negligence, breach of an express or implied covenant of good faith and fair dealing, violations of public policy; and/or
(viii) unlawful employment discrimination of any kind, including but not limited to discrimination due to age, gender, sexual orientation, sex, marital status, gender identity, disability, medical condition, race, color, ancestry, ethnicity, national origin, religion, genetic status or any other protected class under applicable state, federal or local law, sexual harassment or any other form of harassment, and/or retaliation, and/or genetic information, or refusal to submit to a genetic test, and/or including but not limited to any claim under applicable state, federal or local statutes; and/or
(ix) specifically in Maryland, unlawful employment discrimination of any kind, including but not limited to discrimination due to age, gender, sexual orientation, sex, marital status, gender identity, disability, medical condition, race, color, ancestry, ethnicity, national origin, religion, genetic status, or any other protected class under applicable state, federal or local law, harassment and/or retaliation, and/or genetic information, or refusal to submit to a genetic test, and/or, including but not limited to any claim under applicable state, federal or local statutes, including but not limited to Md. Code. State Government § 20-601; and/or Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Family and Medical Leave Act and/or related applicable state, federal and local laws and regulations, each as may be amended from time to time, and the common law of Maryland; and/or
(x) specifically in Virginia, discrimination of any kind, including but not limited to discrimination due to age, gender, sexual orientation, sex, marital status, gender identity, disability, medical condition, race, color, ancestry, ethnicity, national origin, religion, genetic status, or any other protected class under applicable state, federal or local law, sexual or any other form of harassment, and/or retaliation, and/or genetic information or refusal to submit to a genetic test and/or, including but not limited to any claim under applicable commonwealth, federal or local statutes, including but not limited to the Virginia Human Rights Act (Virginia Code §§ 2.2-3900 et seq.), the Virginians with Disabilities Act (Virginia Code §§ 51.5-40 et seq.), the provisions of Virginia Code Title 40.1 (Labor and Employment); Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act; and/or related applicable commonwealth, federal and local laws and regulations, each as may be amended from time to time, and the common law of Virginia; and/or
(xi) any other claim permitted by or derived from the common law, rules of equity, or any state, federal or local laws or regulations; and/or
(xii) in Virginia, any claim seeking damages for injury that allegedly falls outside of the tort immunity granted by the Virginia Workers’ Compensation Act; and/or
(xiii) any claim, dispute, and/or controversy relating to the scope, validity, or enforceability of this Agreement.
3. Waiver of Jury Trial. EMPLOYEE AND THE COMPANY UNDERSTAND THAT BY AGREEING TO THIS BINDING ARBITRATION AGREEMENT, BOTH GIVE UP THEIR RIGHT TO TRIAL BEFORE A JUDGE OR BY JURY OF ANY INDIVIDUAL, CLASS, COLLECTIVE OR REPRESENTATIVE ACTION OR OTHER CLAIM EITHER MAY HAVE AGAINST THE OTHER, EXCEPT AS EXPRESSLY PROVIDED HEREIN.
4. Waiver of Class Action and Collective Claims. Employee and Company agree that their claims shall only be arbitrated on an individual basis. Employee and Company therefore waive their right to bring or participate in any class or collective proceeding. The arbitration panel hearing any claim under this Agreement may only hear Employee and/or Company’s individual claims, and shall not have jurisdiction to combine more than one individual’s claim or claims into a single case, participate in or facilitate notification of others of potential claims, arbitrate any form of class or collective proceeding, or award relief to a group or class of persons not directly taking part in the arbitration proceedings.
5. Claims Excepted From Binding Arbitration.
(i) Notwithstanding the foregoing, Company and Employee each understand and agree that nothing in this Agreement waives any claim or right that cannot be waived as a matter of law.
(ii) Nothing in this Agreement shall be construed to have any effect upon any claim for unemployment benefits that Employee may file following the separation from employment with Company.
(iii) Nothing in this Agreement shall be construed to have any effect upon any claim under applicable workers compensation insurance.
(iv) Nothing in this Agreement shall be construed to have any effect or limit any claim by the Company to seek injunctive or other equitable relief, including without limitation any claims for protection of trade secrets, proprietary and confidential information, unfair competition, for which Company may seek and obtain relief from a court of competent jurisdiction.
(v) Further, nothing in this Agreement shall be construed to affect the independent rights and responsibilities of the Equal Employment Opportunity Commission or other applicable state or federal government authority to enforce the law. Employee agrees, however, that while this agreement does not affect Employee’s right to file a charge or participate in an investigation or proceeding conducted by any such government authority, any private action or claim by Employee for monetary damages in connection with any proceeding concerning matters covered by this agreement shall be subject to arbitration as set forth herein.
6. Arbitration Procedures.
(i) The parties agree that, except as otherwise provided in this Agreement, any arbitration shall be in accordance with and under the Employment Arbitration Rules of the American Arbitration Association (“AAA”).
(ii) For West Virginia arbitration, the arbitration shall take place in Martinsburg, West Virginia, unless otherwise mutually agreed by the parties in writing.
(iii) For Maryland arbitration, the arbitration shall take place in Hagerstown, Maryland, unless otherwise mutually agreed by the parties in writing.
(iv) For Virginia arbitration, the arbitration shall take place in Winchester, Virginia, unless otherwise mutually agreed by the parties in writing.
(v) For Pennsylvania arbitration, the arbitration shall take place in Chambersburg, PA, unless otherwise mutually agreed by the parties in writing.
(vi) The arbitrator shall be selected by the mutual agreement of the parties. If the parties cannot agree upon an arbitrator, the arbitrator shall be determined by the AAA’s selection process. Except as otherwise provided herein, the arbitrator is empowered to and shall resolve all disputes, including without limitation any disputes about the making, validity, enforceability, scope, interpretation, voidability, unconscionability, preemption, severability and/or waiver of this agreement, the arbitrability of any particular claim, as well as the substance of the parties’ underlying disputes, as it is the parties’ intent to avoid involving the court system. The arbitrator also shall be permitted to award those remedies that are available under applicable law. The arbitrator’s decision regarding the claims shall be final and binding upon the parties. The arbitrator’s decision and award shall be enforceable in any court having jurisdiction thereof.
7. Submission of Claims. Employee understands that to assert a claim, he or she must demand arbitration through the forms provided by the AAA and in compliance with AAA rules, both of which may be found at http://www.adr.org or by calling 1-800-778-7879. Employee must also submit a copy of the request for arbitration by certified mail/return receipt requested to Michael W. Clise, president, M Pizza, Inc., 1025 Winchester Avenue, Martinsburg, WV 25401. Any claim not submitted to AAA and mailed to the opposing party as a written request within the proper time period is waived.
8. Time Limitations. If a claim must be submitted to a state or federal anti-discrimination agency such as the Equal Employment Opportunity Commission (“EEOC”) or or the West Virginia Human Rights Commission (“WVHRC”) or the Maryland Commission on Civil Rights (“MCCR”) or the Virginia Human Rights Commission (“VHRC”) or the Pennsylvania Human Relations Commission (“PHRC”) before filing the claim in court, then the request for arbitration must be submitted to AAA and mailed to the Company within the time period in which said claim must be submitted to the state or federal agency. Any claim subject to arbitration hereunder, other than one which must be submitted to a state or federal anti-discrimination agency such as the EEOC, must be brought within one (1) year after the date on which the alleged violation of law, liability or obligation took place or arose. No party may recover any damages or other relief, including but not limited to lost wages or benefits, based on any violation of law, liability or obligation which took place or arose prior to the one year period set forth in this paragraph.
9. Fees and Costs. The arbitrator’s fees and costs will be paid by the Company. The parties shall bear their own attorney fees and costs in relation to all preparation for and attendance at the arbitration hearing.
10. At-Will Employment. Employee understands and agrees that this Agreement is not, and shall not be construed to create, any contract or term of employment, express or implied, nor shall this this Agreement be construed in any way to change the status of the Employee from that of an employee at-will.
11. Survival. This Agreement shall survive the termination of the Employee’s relationship with the Company, as an employee or other relationship, regardless of the manner of such termination and shall benefit and be binding upon the Company, its parent, affiliates, and subsidiary companies, its successors and assigns and upon the Employee, his/her heirs, assigns, successors, guardians, executors, administrators, and legal representatives.
12. Severability. Should any term or provision, or portion thereof, be declared void or unenforceable or deemed in contravention of law, it shall be severed and/or modified by the arbitrator or court and the remainder of this agreement shall be enforceable. Should the waiver of class, collective or representative action set forth in Section 5 above be deemed invalid, then this Agreement shall be deemed null and void except for Section 4, Waiver of Jury Trial, and said class, collective or representative action must be brought in the appropriate court system and not in arbitration.
13. Governing Law; Procedural Rules.
(i) This Arbitration Agreement will be governed by the Federal Arbitration Act (FAA) and involves a transaction in interstate commerce. The substantive rights and remedies of the parties shall be governed by, construed and enforced in accordance with the laws of the state, without regard to the principles of conflict of laws. All claims of improper venue and forum non conveniens are waived. The parties hereby submit to personal jurisdiction and all claims of lack of personal jurisdiction are waived.
(ii) In West Virginia, the arbitrator shall apply the West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure, except as otherwise stated herein. All claims of improper venue and forum non conveniens are waived. The parties hereby submit to West Virginia personal jurisdiction and all claims of lack of personal jurisdiction are waived.
(iii) In Maryland, the substantive rights and remedies of the parties shall be governed by, construed and enforced in accordance with the laws of the State of Maryland, without regard to the principles of conflict of laws. The arbitrator shall apply the Maryland Rules of Evidence and the Maryland Rules of Civil Procedure, except as otherwise stated herein. All claims of improper venue and forum non conveniens are waived. The parties hereby submit to Maryland personal jurisdiction and all claims of lack of personal jurisdiction are waived.
(iv) In Virginia, the substantive rights and remedies of the parties shall be governed by, construed and enforced in accordance with the laws of the Commonwealth of Virginia, without regard to the principles of conflict of laws, except as otherwise stated herein. The arbitrator shall apply the Virginia Rules of Evidence and the Virginia Rules of Civil Procedure, except as otherwise stated herein. All claims of improper venue and forum non conveniens are waived. The parties hereby submit to Virginia personal jurisdiction and all claims of lack of personal jurisdiction are waived.
(v) In Pennsylvania, the substantive rights and remedies of the parties shall be governed by, construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania, without regard to the principles of conflict of laws. The arbitrator shall apply the Pennsylvania Rules of Evidence and the Pennsylvania Rules of Civil Procedure, except as otherwise stated herein. All claims of improper venue and forum non conveniens are waived. The parties hereby submit to Pennsylvania personal jurisdiction and all claims of lack of personal jurisdiction are waived.
14. Exclusive Agreement. Any agreement contrary to, or modifying, the foregoing arbitration provisions must be entered into, in writing, by the President of the Company. Oral representations made before or after Employee is hired do not alter this agreement. This agreement supersedes any and all prior agreements between the parties regarding arbitration, including, but not limited to, any arbitration provisions in employment applications.
15. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one Agreement binding on all the parties hereto.