United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
C. NUGENT UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's Motion to
Dismiss, or in the Alternative, Stay Proceedings Pending
Arbitration. (ECF #5). Plaintiffs filed an Opposition to the
Motion, and Defendant filed a Reply in support. (ECF #11, 1
4). After a thorough review of all of the briefs, supporting
documents, and relevant law, the Court finds as follows.
Susan Morgan was employed by UMH Properties ("UMH")
from May 2016 through April 2018. In connection with her
hiring, she was required to execute an arbitration agreement
which she signed on May 23. 2016. The Agreement states, in
relevant part, as follows:
In consideration of the undersigned's (the
"Employee") employment with UMH Properties, Inc.,
(the "Company"), the parties agree that any and all
disputes, claims or controversies arising from or relating to
the employee's employment or termination of employment
with the Company, including the validity of this arbitration
agreement and all other clauses contained in the Employee
Manual... shall be resolved by binding arbitration.
Arbitration in accordance with the terms of this agreement is
the required and exclusive forum for the resolution of all
disputes relating to employment including .. .
compensation.... Such disputes include.. .claims, demands or
action under ... the Fair Labor Standards Act.
Prior to arbitration, the Company's Legal Department and
the Employee (or the Employee's attorney) will, either
verbally or in writing, discuss resolution of the matter....
If the matter is not resolved through such discussions, an
arbitration demand shall be served by either party upon the
... [A]n arbitrator shall be selected by the Company with the
Employee's consent, which consent shall not be
unreasonably withheld. Costs attributable to the arbitrator
shall be paid for by the Company, in accordance with the
Employment Arbitration Rules and mediation Procedures of the
American Arbitration Association
("AAA")(www.adr.org). If an arbitrator is
not agreed upon ... either party may petition the AAA to
request a list of arbitrators and the parties shall select
one of the arbitrators on the list....
The remedies available to the employee and the Company during
the arbitration proceeding shall be the same as the remedies
available under the statute(s) upon which any claim(s) is
based, and that could be awarded by any court or
administrative agency. The arbitrator's determination
shall be final and binding on the parties.
The Employee is required to pay any administrative filing fee
and related costs associated with his or her submission of a
disputed issue to arbitration. The cost of the arbitrator
shall be borne by the Company. Each party shall bear its own
attorneys' fees and costs, unless otherwise provided by
statute upon which the claim is based.
... Any arbitration hearing will take place at 3499 Route 9N,
Suite 3C, Freehold, New Jersey, unless otherwise agreed in
writing by all parties. The arbitrator shall have all powers
provided by law, this clause and the agreement of the
parties. These powers shall include all legal and equitable
remedies including, but not limited to money damages,
declaratory and injunctive relief.
THE UNDERSIGNED EMPLOYEE VOLUNTARILY AND KNOWINGLY, AND FREE
FROM DURESS OR COERCION, WAIVES ANY RIGHT THAT THE EMPLOYEE
MAY HAVE TO LITIGATE IN COURT OR HAVE A JURY TRIAL ON THAT
CLAIM. FURTHER, THE EMPLOYEE WILL NOT HAVE THE RIGHT TO
PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF
ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO
THIS ARBITRATION. THE ARBITRATOR'S DECISION WILL BE FINAL
AN D BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF
YOU WENT TO COURT MAY NOT BE AVAILABLE IN ARBITRATION. THERE
SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE
ARBITRATED ON A CLASS ACTION BASIS.
Should any one or more of the provisions contained in this
arbitration agreement be found to be invalid, illegal or
unenforceable, the enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired
April 25, 2018, Plaintiff filed this collective action
against UMH alleging that it maintained a practice and policy
of failing to include commissions and/or bonuses earned by
Plaintiff and other similarly-situated hourly, non-exempt
employees in their regular rate of pay, for purposes of
calculating their overtime compensation. She claims that this
practice violates the Fair Labor ...