United States District Court, D. Arizona
[Copyrighted Material Omitted]
For Jonathan Longnecker, Erandi Acevedo, Jennifer Flynn, Bonita Kathol, Janet Seitz, Plaintiffs: Charles P Yezbak, III, LEAD ATTORNEY, Yezbak Law Offices, Nashville, TN; David William Ricksecker, Theodore Reid Coploff, LEAD ATTORNEYS, Woodley & McGillivary, Washington, DC; Kaitlyn Alissa Redfield-Ortiz, Nicholas Jason Enoch, LEAD ATTORNEYS, Lubin & Enoch PC, Phoenix, AZ.
For American Express Company, Amex Card Services Company, Defendants: Dawn L Dauphine, LEAD ATTORNEY, William J Maledon, Osborn Maledon PA, Phoenix, AZ; Pamela S Richardson, LEAD ATTORNEY, August W Heckman, III, Morgan Lewis & Bockius LLP - Princeton, NJ, Princeton, NJ; Richard G Rosenblatt, LEAD ATTORNEY, Morgan Lewis & Bockius LLP, Princeton, NJ; Sharon A Lisitzky, LEAD ATTORNEY, Morgan Lewis & Bockius LLP, Miami, FL.
H. Russel Holland, United States District Judge.
Motion to Compel Arbitration
Defendants move to compel arbitration. This motion is opposed. Oral argument was requested and has been heard.
Plaintiffs are Jonathan Longnecker, Erandi Acevedo, Jennifer Flynn, Bonita Kathol, and Janet Seitz. Defendants are American Express Company and AMEX Card Services Company.
Plaintiffs are former employees at defendants' Phoenix call center. In their complaint, plaintiffs allege that defendants have violated the Fair Labor Standards Act (FLSA) because defendants did not pay overtime for pre-shift work and work performed during meal breaks and because defendants miscalculated plaintiffs' rate of overtime pay by failing to include incentive payments and shift differentials in their regular rates of pay. Plaintiffs bring their FLSA claims on behalf of themselves and other similarly situated current and former employees.
Defendants contend that plaintiffs are subject to defendants' Arbitration Policy, which was introduced in 2003. Since 2003, all new hires are required to sign an Employment Arbitration Acknowledgment Form as a condition of their commencement of employment. Longnecker, Acevedo, and Flynn were all hired after 2003, and all signed a New Hire Employment Arbitration Acknowledgment Form. The Acknowledgment Forms that Longnecker, Flynn, and Acevedo signed provide that the employee " acknowledge[s] that [he] ha[s] received and been given the opportunity to review the American Express Company Employment Arbitration Policy" and that the employee " understand[s] that arbitration is the final and exclusive forum for the resolution of all employment-related disputes between American Express and [the employee] that are based on a legal claim."  Longnecker, Flynn, and Acevedo do not dispute that they signed Acknowledgment Forms when they were hired.
In 2007, defendants extended the Arbitration Policy to employees who had been hired prior to 2003. These employees were given an opportunity to " opt out" of the Arbitration Policy. Plaintiff Seitz was hired by defendants prior to 2003 and thus was given the opportunity to " opt out" of the Arbitration Policy, but she did not do so.
The 2007 Arbitration Policy provides that " [t]he agreement between each individual and American Express to be bound by the Policy creates a contract requiring both parties to resolve all employment-related disputes that are based on a legal claim through final and binding arbitration."  The Arbitration Policy provides that
disputes subject to arbitration under this Policy include: i) all legal claims that an individual had or in the future has against the Company or its officers, directors, shareholders, employees, and/or agents and which arise out of or relate to an individual's application for employment, employment with the Company or separation from the Company.
More specifically, the Arbitration Policy provides that
" Covered Claims" include, but are not limited to:
* * *
2. failure to pay wages, bonuses or other compensation;
* * *, and
7. claims for alleged violations of any other common law, federal, state, or local statute, ordinance, regulation or public policy, including, but not limited to, Title VII of the Civil Rights Act of 1964..., the Age Discrimination in Employment Act, the Fair Labor Standards Act, the Americans with Disabilities Act, the Family and Medical Leave Act of 1993, and the Employee Retirement Income Security Act of 1974.
The Arbitration Policy further provides that " [a]ll claims subject to arbitration under the Policy MUST be submitted on an individual basis. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS OR COLLECTIVE BASIS." 
The Arbitration Policy provides that it " shall be governed by and construed and enforced in accordance with the laws of the State of New York without regard to principles of conflicts of law."  Covered claims, however, are decided by the arbitrator based on the " rules of law of the state in which events giving rise to the Covered Claim took ...