The National Debt Relief Employment Arbitration Program (“Program”) is a contract between you (hereafter “you” or “Applicant”) and National Debt Relief, LLC or the subsidiary to which you are applying for employment (hereafter “NDR”) governing how disputes regarding the application process and your employment (assuming you are hired) are to be resolved. This document describes the Program terms.
In exchange for Applicant’s employment, continued employment, or application to be considered for employment with NDR, and in exchange for NDR’s consideration of your application and any other benefits you receive from NDR, you and NDR mutually agree to arbitrate all disputes and claims described below that you may have against each other through binding, individual arbitration, as further explained below.
The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), shall govern this Program. The Parties expressly agree that this Program shall be construed, interpreted, and its validity and enforceability determined, in accordance with the FAA. Applicant and NDR hereby mutually agree to submit to binding arbitration any and all disputes or claims as defined below, under the following conditions.
1. Scope of Program. This Program applies to any past, present or future dispute or claim arising out of or related to Applicant’s application for employment (even if not hired), employment and/or separation from employment with the “Company” as herein defined and survives after the employment relationship ends. The Program applies to any dispute or claim that NDR may have against Applicant or that Applicant may have against the Company which, for purposes of this Program, is defined to include NDR and its divisions, subsidiaries, and affiliated entities, and their collective: (1) current and former officers, directors, principals, shareholders, owners, partners, employees, supervisors, and agents; (2) insurers and benefit plans, including the plan sponsors, fiduciaries, administrators, affiliates, and agents; and (3) the predecessors, successors and assigns of any of the foregoing (all of which may enforce this Program as a third party beneficiary). Except as it otherwise provides, this Program is intended to apply to the resolution of disputes and claims involving legally-protected rights that, in the absence of this Program, would be resolved in a court of law or before an administrative agency or forum other than arbitration. This Program 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, as well as not by hearing before the labor commissioner of the state in which the employee resides or works, or before any other government agency in the state in which Applicant resides or works. With the exception of claims regarding the validity, scope, or enforceability (including unconscionability) of the Class and Collective Action Waiver, addressed below, Applicant and the Company agree to submit to the arbitrator all claims or issues regarding arbitrability, the validity, scope, enforceability, interpretation, or application of this Program, the arbitrator’s jurisdiction, as well as any gateway, threshold, or any other challenges to this Program, including claims that this Program is unconscionable.
2. Covered Claims. Except as it otherwise provides, this Program applies, without limitation, to employment-related and compensated-related disputes, controversies, and actions that: (a) in any way arise from or relate to Applicant’s application for employment, employment, or termination of employment with NDR and (b) are based upon rights that are protected by federal, state, or local law, and, in the absence of this Program, would otherwise be actionable in court or before a government agency (hereinafter “Claim” or “Claims”). This includes disputes about your application, hiring, background checks, privacy, employment relationship with the Company or the termination of that relationship, your wages, compensation, discipline, leaves of absence, accommodations and workplace treatment as well as NDR’s policies and practices relating to such matters. Examples of Claims include, but are not limited to, allegations of: (i) discrimination or harassment based on race, creed, color, religion, sex, age, mental or physical disability, leave status, national origin, ancestry, sexual orientation, marital status, veteran or military reserve status, or any other characteristic protected by federal, state or local law; (ii) retaliation, including, but not limited to, whistleblower status or retaliation for filing a workers’ compensation claim; (iii) tortious conduct, including, but not limited to, assault, battery, defamation, false imprisonment, invasion of privacy, infliction of emotional distress, or workplace injury not otherwise covered by applicable workers’ compensation laws; (iv) violations of any employment related laws, including, but not limited to, Title VII of the Civil Rights Act, the California Fair Employment and Housing Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Pregnancy Discrimination Act, the Equal Pay Act, Genetic Information Nondiscrimination Act, the Family and Medical Leave Act, the Worker Adjustment Retraining and Notification Act, Fair Credit Reporting Act, Affordable Care Act, the New Jersey Law Against Discrimination, the New Jersey Conscientious Employee Protection Act, the New Jersey Equal Pay Act, the New York State Human Rights Law, the New York City Human Rights Law, Nevada Employment Practices, and any amendments to these laws, and any such related or similar state or local employment related laws; (v) violations of any federal, state or local law or common law doctrine for breach of contract, promissory estoppel, wrongful discharge or conversion; (vi) interference with rights under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or concerning administration of ERISA plans not excluded below; (vii) violations of any federal state, or local wage payment law, including the Fair Labor Standards Act, the New Jersey Wage and Hour Law, the New Jersey Wage Payment Law, the California Labor Code and the California Wage Orders, the New York Labor Law, Compensation, Wages and Hours Nev. Rev. Stat. 608, or under policy, program or contract (express or implied) regarding compensation or wages including, without limitation, claims for pay, minimum wage and overtime, wage or other penalties, benefits (except as excluded below), vacation, seating, meal and rest breaks, classification, reimbursement of expenses, compensation, stock or incentive bonus plans; and (viii) violations of any federal, state or local statutes, regulations, ordinances or other laws, if any, addressing any of the foregoing or similar subject matters, and all other state statutory and common law claims (hereinafter “Claim” or Claims”).
3. Claims Not Covered by This Program. This Program does not apply to claims for the following: (a) workers’ compensation benefits (however, claims of retaliation for filing a workers’ compensation claim are covered Claims under this Program), (b) state disability insurance; (c) unemployment insurance benefits; (d) employee benefits under any benefit plan sponsored by the Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance, which include their own dispute resolution procedure; however, this Program 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; (e) employee benefits under any benefit plan sponsored by the Company which includes its own arbitration procedure; however, if such arbitration procedure is held not to be binding or enforceable, then this Program does apply; (f) temporary and/or preliminary injunctive relief in a court of competent jurisdiction for tortious interference with prospective employment and/or the protection of confidential information and/or trade secrets or intellectual property, prevention of unfair competition, or enforcement of post-employment contractual restrictions related to same; provided, however, that where California law applies, all issues of final relief shall continue to be decided through arbitration, and the pursuit of the temporary and/or preliminary injunctive relief described herein shall not constitute a waiver of the parties’ agreement to arbitrate by any party; (g) disputes between the parties that may not be subject to pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as provided by an Act of Congress or lawful, enforceable Executive Order; and (h) claims that parties are legally prohibited from submitting to arbitration. In addition to the foregoing, this Program does not require the Company to begin arbitration proceedings or to initiate any other procedure whatsoever before taking any action regarding Applicant’s application or employment with which Applicant might disagree, such as refusal to hire, termination of the application or hiring process, modification of the terms and conditions of employment, or termination of employment.
4. Administrative Agency Claims and Investigations. This Program does not prevent you from filing unfair labor practice charges with the National Labor Relations Board (www.nlrb.gov). The Company will not retaliate against you for filing such a charge. Nothing in this Program prevents you from making a report to, filing a claim or charge with, or participating in an investigation by a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, or the National Labor Relations Board. Nothing in this Program prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Program. However, under this Program, you give up the right to have any Claims adjudicated by or before any such government agency, as well as the right to participate as a party or intervenor in any lawsuit filed by such an agency against NDR. If a government agency issues a right to sue notice, binding arbitration under this Program will be the sole remedy. The Company 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.
5. Deadline for Filing a Claim. This paragraph of the Program contains a contractual limitations period that may shorten the deadline for asserting Claims. Every Claim must be asserted by way of a formal demand for arbitration (the process for which is further explained in this Program), filed with the arbitration Administrator identified in this Program within 365 days after the Claim arose. For Claims that arise from a tangible employment action such as a failure to promote, failure to accommodate, or termination of employment, that means within 365 days after the challenged action occurred. Unless prohibited by law, under this Program, you and we waive any and all statutes of limitation to the contrary. You do not have to exhaust administrative remedies under applicable law as to any Claims covered under this Program before filing a demand for arbitration of such Claims. Thus, provided that you file a timely demand for arbitration in compliance with the terms of this Program, the Company will not seek dismissal of such claims on grounds that you failed to exhaust administrative remedies with a human rights agency. If a formal demand for arbitration of a Claim is not filed within the time period described above, the party wishing to assert it will forever waive and lose the right to seek relief for that Claim. The filing of an administrative charge or complaint with a state, local, or federal administrative agency such as the EEOC is not the equivalent of a formal demand for arbitration and does not satisfy or extend the time period within which Claims must be filed with the Administrator. If and only if the contractual limitations period set forth above is determined to be unreasonable as a matter of law or in violation of law or applicable public policy as to specific Claims, the contractual limitations period for such Claims shall be set to that amount of time necessary to render it reasonable and consistent with law and public policy. Notwithstanding anything in this Program to the contrary, in no event shall the contractual limitations period extend beyond the statutory limitations period that would otherwise be applicable to a Claim.
6. Notice of Claim and Exhaustion of Internal Procedures. The party bringing the Claim must file a formal demand for arbitration in writing with the Administrator and deliver the written demand by hand, overnight delivery or first-class mail to the other party within the applicable deadline described in this Program. The demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to the Company shall be provided to the Legal Department, National Debt Relief, 180 Maiden Lane, 30th Floor, New York, NY 10038. Notice to the Applicant shall be sent to the Applicant’s last known home address as reflected in the Company’s records. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. Before initiating arbitration, Applicant must utilize, and nothing contained in this Program shall be construed to prevent or excuse Applicant or the Company from utilizing, the Company’s or applicable benefit plan’s existing internal procedures for investigation and/or resolution of complaints, and this Program is not intended to be a substitute for the utilization of such procedures.
7. Class and Collective Action Waiver. Private attorney general actions brought on behalf of the State of California pursuant to and under the California Labor Code are not arbitrable, not within the scope of this Agreement and may be maintained in a court of law, but any claim on your own behalf as an aggrieved employee for recovery of underpaid wages (as opposed to representative claims for civil penalties) must be arbitrated under this Program. Also, this Program affects your ability to participate in class or collective actions. Both the Company and you agree to bring any Claim in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any Claim to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Program or the AAA Rules, disputes in court or arbitration regarding the validity, enforceability or breach of the Class Action Waiver may be resolved only by the court and not by an arbitrator. In any case in which (1) a Claim is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class and/or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. You will not be retaliated against, disciplined or threatened with discipline as a result of your filing of or participation in a class or collective action in any forum. However, the Company may lawfully seek enforcement of this Program and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or Claims. The Class Action Waiver shall be severable in any case in which a Claim is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.
8. Mandatory Mediation. After submission of the written Claim as set forth above, unless both parties agree in writing to skip the mediation step, the parties shall submit the matter to non-binding mediation before a mutually selected experienced neutral mediator, who shall provide the rules under which the mediation will be conducted. If the parties cannot agree upon a mediator, the parties (or if they so choose, their attorneys) will jointly select a mediator from a list provided by the American Arbitration Association (“AAA”), a well-respected, national alternative dispute resolution service provider, in the same manner provided below for the selection of an arbitrator. The mediator may encourage the parties to discuss their differences and assists them in developing a resolution that is satisfactory to each of them. If the parties can resolve their dispute, they shall set forth the terms of their agreement in a legally binding document. The Company shall pay the fees of the mediator and the expenses associated with the mediation. Except as otherwise prohibited by law or the mutual written agreement of the parties, failure by a party to submit its Claim to mediation or to participate in the mediation shall constitute a waiver of any Claims that the party may have against the other party relating to the subject matter of the written Claim. In the event the Claim is not resolved through the mediation process, the Claim shall be submitted to binding arbitration, as provided herein.
9. Selection of the Administrator and Arbitrator; ApplicableArbitration Rules. The parties shall attempt to select the neutral arbitrator and/or arbitration sponsoring organization (hereinafter the “Administrator”) by mutual agreement. If the parties are not able to mutually agree to an arbitrator and/or arbitration sponsoring organization, the Administrator shall be the American Arbitration Association (“AAA”), and the arbitrator will be appointed pursuant to the AAA’s rules and procedures for appointing arbitrators in employment dispute cases. Except as provided in this Program, the arbitration shall be administered in accordance with the then current Employment Arbitration Rules of the AAA. The AAA Rules may be found at www.adr.org or by searching for “AAA Employment Arbitration Rules” using a service such as www.Google.com or by asking the Company’s Human Resources Department (email HR@NationalDebtRelief.com) for a copy of the rules. 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 for appointment of a neutral Arbitrator. Unless the parties jointly agree otherwise, the Arbitrator shall be either an attorney with at least 10 years of experience arbitrating employment-related claims and licensed to practice law in the state in which the arbitration is convened, or a retired judge (the “Arbitrator”), and the arbitration shall take place in a location that is reasonably convenient for the Applicant and for the witnesses necessary for the proper resolution of the Claims involved. Any party to this Program may be represented by an attorney selected by the party.
10. Pre-Arbitration Procedures; Discovery. The Arbitrator shall have jurisdiction to hear and rule on pre-hearing disputes and is authorized to hold pre-hearing conferences by telephone or in person, as the Arbitrator deems necessary. The Arbitrator shall have the power to entertain a motion to dismiss and/or a motion for summary judgment by either party and shall apply the standards governing such motions under the Federal Rules of Civil Procedure (“FRCP”). However, the Arbitrator shall not process or rule on matters outside the scope of the Claims that are the subject of the arbitration. In addition, unless the parties expressly agree in writing otherwise, the Arbitrator shall not administer or adjudicate the Claims or case of the Applicant with the Claims or case of any other claimant. Except as specified herein, pre-hearing discovery shall be conducted in accordance with the AAA’s discovery rules for employment cases, and without reference to any local court rules. Each party may draft and serve upon the other side one set of no more than 20 interrogatories and one set of no more than 10 requests to produce documents, in a form and in a manner consistent with the FRCP. Also, each side shall be entitled to take no more than 3 depositions, each deposition to be concluded within 5 hours (not including reasonable breaks) with the following exception: NDR may take the Applicant’s deposition and the Applicant may take the deposition of NDR’s corporate representative over one or more consecutive days, with each deposition to be concluded within 10 hours (not including reasonable breaks). The Applicant’s deposition shall be scheduled and completed first before any other depositions may be conducted. Depositions shall take place at a location reasonably convenient for all parties and, to be used as evidence, must be recorded by a court reported authorized in the jurisdiction where the deposition takes place, by stenographic means and/or videography, at the cost of the party taking the deposition. A party wishing to obtain a copy of a deposition transcript must pay the cost of such transcript; parties need not pay for or provide “courtesy” copies to the other side. Upon the request of a party, the Arbitrator may order additional discovery that is consistent with the Administrator’s rules and the expedited, streamlined, efficient nature of arbitration.
11. Substantive Law and Arbitration Proceeding. 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. The arbitration shall be conducted consistent with the then-current AAA Rules (or such other rules as agreed upon by the parties) to the extent they are not inconsistent with any provision of this Program. In adjudicating Claims, the Arbitrator shall rely upon the applicable substantive law governing the Claims at the time the Claims arose, or federal law, or each, as applicable to the Claims asserted. The Arbitrator is without jurisdiction to apply any different substantive law. The Federal Rules of Evidence shall apply to the arbitration hearing. Within 30 days after receipt of the transcript of the arbitration hearing, or such other time as the parties agree with the Arbitrator, any party will have the right to prepare, serve on the other party and file with the Arbitrator a post-hearing brief.
12. Confidentiality. Except as necessary to obtain evidence required for the prosecution or defense of Claims, or as may be permitted or required by law, as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the existence, content (including all testimony, information and discovery materials), or results of any arbitration hereunder without the prior written consent of all parties.
13. The Arbitrator’s Award. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, 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, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Program.
14. The Arbitrator’s Written Decision. The Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. The Arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
15. Arbitration Fees. Each party will pay its share of any filing or administrative fees charged by the Administrator in accordance with the Arbitrator’s rules, and shall also pay for the fees for his, her, or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. In all cases where required by law, the Company will pay the Arbitrator’s fees. However, if under applicable law the Company is not required to pay all of the Arbitrator’s and/or administrative fees, such fee(s) will be apportioned between the parties in accordance with said applicable law, and any disputes in that regard will be resolved by the Arbitrator.
16. Attorneys’ Fees to Enforce Program. Should either party institute any legal action or administrative proceeding with respect to any Claim covered by this Program or pursue any dispute or matter covered by this Program by any method other than the arbitration described herein, except as permitted in Paragraphs 3 and 4 or in connection with claims explicitly excluded from mandatory arbitration by governing law, the responding party shall be entitled to recover from the other party all damages, costs, expenses and attorneys’ fees incurred as a result of such action, including any appeal incurred in compelling arbitration of the claim and dismissing the legal action or administrative proceeding.
17. Successors and Assigns. This Program will inure to the benefit of the parties’ heirs, successors and assigns. Applicant agrees this Program may be assigned by the Company to a subsequent employer, successor, or assign without the need for further authorization or agreement from Applicant.
18. Survival; Termination of Program. Provided that this Program is not terminated as set forth below, this Program survives for as long as you and NDR have Claims that they wish to assert against the other, even after the termination of your employment with NDR. It further applies even if you or NDR files for bankruptcy (to the extent permitted by applicable law). NDR may terminate this Program at any time upon 30 days advanced written notice to you that the Program will be terminated. To be effective, such written notice must be signed by an officer of NDR after proper corporate authorization. In the event of such notice, this Program will continue to apply to all Claims that were asserted by way of a formal demand for arbitration and properly filed with the Administrator prior to the termination date set forth in the termination notice (such date to be no sooner than 30 days after issuance of such termination notice), but the Program will not apply to any Claims asserted after the termination date.
19. Entire Program. This Program replaces all prior agreements, written, oral or implied, regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of employment-related disputes. Except as stated above regarding the Class and Collective Action Waiver, in the event any portion of this Program is deemed unenforceable, the unenforceable provision will be severed from the Program and the remainder of this Program will be enforceable. This Program is strictly limited to the terms and conditions set forth herein and no variation in, or addition to, any of the terms or conditions shall become part of this Program without the prior express written consent of an officer of NDR after proper corporate authorization.
20. At-Will Employment. This Program does not in any way alter the “at-will” status of Applicant’s employment, assuming Applicant is hired; Applicant understands and agrees that employment with NDR is completely at-will, voluntary, for an indefinite term, and is terminable, with or without cause, at any time by either Applicant or NDR.