Arbitration Agreement
1.0 NAME
This Arbitration Agreement will also be referred to herein as “Agreement.”
2.0 PURPOSE
DISPUTES AND CLAIMS COVERED BY THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION INSTEAD OF A COURT TRIAL BEFORE A JUDGE OR JURY.
3.0 EMPLOYEE
3.1 As used in this Agreement, the term “Employee” refers to the person who has signed this Agreement, which may include any person who applies for, accepts, or continues in his/her/their employment with Amtrak, or who works as an Independent Contractor with Amtrak. This Agreement includes Independent Contractors within the definition of “Employee” only for convenience of reference, and neither that inclusion nor anything else in this Agreement shall affect the status or classification of Independent Contractors.1
3.2 This Agreement survives the termination of Employee’s employment (or expiration of any benefit of employment) or engagement with Amtrak. This Agreement will apply to Employee throughout their employment relationship with Amtrak and following their separation from Amtrak for any reason, whether by resignation or discharge or any other reason.
3.3 This Agreement is mutual between Amtrak and Employee. It applies to all Covered Claims (defined below) asserted either by Amtrak or Employee.
4.0 COVERED CLAIMS
4.1 “Covered Claims” are any and all past, present and future legal claims, controversies, disputes, complaints, or causes of action (unless excluded in Section 5 below) arising out of, and/or directly or indirectly related to, this Agreement and/or the employment or independent contractor relationship between Employee and Amtrak2 or an application for employment with Amtrak, including but not limited to alleged violations of any federal, state or local statute, regulation or common law. Covered Claims include (unless excluded in Section 5 below), by way of example only and without limitation, claims relating to recruiting and hiring, promotion, compensation, discipline, discrimination, harassment and hostile work environment, retaliation, privacy, terms and conditions of employment or independent contractor relationship, independent contractor status, and the termination of the employment or independent contractor relationship, and claims arising under the Fair Credit Reporting Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to Employee’s application for employment, employment or the termination of employment.
4.2 This Agreement applies to any Covered Claims that Amtrak may have against Employee and any Covered Claims that Employee may have against Amtrak and any of its past, present, or future: (a) parents, subsidiaries, or affiliates; (b) officers, directors, members, employees, or agents; (c) benefit plans or the plans’ sponsors, fiduciaries, administrators, affiliates, or agents; and (d) successors or assigns. Each and all of the entities/individuals listed in (a) – (d) of the preceding sentence may enforce this Agreement as a direct or third-party beneficiary. Unless excluded in Section 5 below, all Covered Claims asserted between Amtrak and Employee are subject to mutual mandatory final and binding arbitration. Covered Claims between Amtrak and Employee may not be brought, pursued or litigated, by either Amtrak or Employee, in a federal, state, local or tribal court of law or equity.
5.0 EXCLUDED CLAIMS
The only legal claims, controversies, disputes, complaints, or causes of action that are excluded from this mutual mandatory binding arbitration Agreement are the following:
5.1 Claims asserted under an applicable collective bargaining agreement;
5.2 Claims for benefits under a benefit plan covered by the Employee Retirement Income Security Act (“ERISA”);
5.3 Claims under the exclusive jurisdiction of Railway Labor Act (“RLA”);
5.4 Disputes between the parties that may not be subject to arbitration or predispute arbitration agreements as provided by an applicable federal statute;
5.5 Disputes that may not be subject to pre-dispute arbitration agreements under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (at the election of Employee);
5.6 Cases within the jurisdiction of a small claims court; so long as such claims are brought and maintained only in that court;
5.7 Claims for temporary and/or preliminary injunctive relief in a court of competent jurisdiction if the award to which the party may be entitled in arbitration may be rendered ineffectual without such relief; provided, however, that all issues of final relief shall continue to be decided through arbitration; and
5.8 Claims under the Federal Employers Liability Act (“FELA”).
If any claim(s) not covered under this Agreement above are combined with claims that are covered under this Agreement, to the maximum extent permitted under applicable law, the covered claims will be arbitrated and continue to be covered under this Agreement.
6.0 RIGHT TO FILE AGENCY COMPLAINTS
6.1 Nothing in this Agreement prevents Employee from making a report to Amtrak’s Office of Inspector General, or 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, Securities Exchange Commissions, the National Mediation Board, the Occupational Safety and Health Administration, the Surface Transportation Board, Office of Federal Contract Compliance Programs, and criminal law enforcement authorities, and 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 even if the claims would otherwise be covered by this Agreement. This Agreement also does not prevent or prohibit Employee in any way from reporting, communicating about, or disclosing claims for discrimination, harassment, retaliation, or sexual abuse.
6.2 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.
6.3 Amtrak will not retaliate against Employee for filing a claim with an administrative agency or for participating as a witness and/or submitting information with or to such government agency or entity.
7.0 ARBITRATION PROCESS AND PROCEDURE
7.1 Binding arbitration is a process by which an external, independent, and professional arbitrator acts as judge and presides over and decides a legal dispute. If the dispute goes to a formal hearing, the arbitrator will listen to evidence presented by both sides, including documents and witness testimony, before making a final decision. “Binding” arbitration means both Employee and Amtrak are bound by the arbitrator’s decision.
7.2 All arbitrations under this Agreement will be conducted through the JAMS dispute resolution organization. If the parties mutually agree that a JAMS arbitration is impractical in a particular case, then the arbitration will be conducted through the American Arbitration Association (“AAA”).
7.3 Demand for Arbitration
(a) The same statute of limitations and exhaustion of administrative remedies requirements that would have applied if the claim was made in an administrative or judicial forum with jurisdiction over the dispute will apply to any Covered Claim.
(b) The Company and Employee agree that the party initiating the claim must make a written request for arbitration of the claim to the other party no later than the expiration of the statute of limitations (deadline for filing) that the law prescribes for the claim.
An Employee request for arbitration must be sent in writing to the Company, including a brief description of the claim and the basis for it, to:
Amtrak Office of General Counsel
1 Massachusetts Ave., N.W.
Washington, D.C. 20001
The Company will give notice of any claim against Employee at the last home address Employee provided in writing to the Company. The request for arbitration must be signed by the party making the demand for arbitration (Employee personally or authorized representative of the Company, as applicable). The arbitrator will resolve all disputes regarding the timeliness or propriety of the notice of claims and apply the statute of limitations that would have applied if the claim(s) had been brought in court.
(c) Cooling Off Period and Informal Settlement Conference. The parties mutually agree that after a party initiates the claim by making a written request for arbitration to the other, unless otherwise mutually agreed to in writing by both parties, there will be a (30) day “Cooling Off Period.” During the Cooling Off Period, the parties may attempt in good faith to resolve the claim. The parties may also mutually agree to extend the Cooling Off Period. During the Cooling Off Period, either party may request an informal meeting to discuss in good faith a potential informal resolution of the dispute, without the need to go forward in an arbitration (“Informal Settlement Conference”). If timely requested, the Informal Settlement Conference will take place at a mutually agreeable time by telephone or videoconference. Employee and a Company representative must both personally participate; any counsel representing Employee or the Company also may participate. The requirement of personal participation in an Informal Settlement Conference may be waived only if both Employee and the Company agree in writing. At the end of the Cooling Off Period or if an Informal Settlement Conference is timely requested, 30 days after completion of the Informal Settlement Conference, and unless the parties have resolved the claim, the parties will commence the arbitrator selection process pursuant to the Selection of Neutral Arbitrator process below. Any statute of limitations applicable to the claims described in a demand for arbitration shall be deemed to be tolled during the period between the date that a fully complete request for arbitration is received and the later of (1) 30 days after receipt of the request for arbitration; or (2) if an Informal Settlement Conference is timely requested, 30 days after completion of the Informal Settlement Conference. Unless otherwise prohibited by applicable law, if any aspect of the requirements in this paragraph has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, an arbitrator or JAMS (or AAA if applicable) may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without compliance with the Cooling Off Period and, if requested by either party, the Informal Settlement Conference. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with the procedures in this Section.
(d) Subject to the Cooling Off Period and Informal Settlement Conference provision above, arbitration is to be commenced consistent with the arbitration rules and procedures of JAMS or AAA, as applicable, governing disputes between employers and employees to the extent consistent with the terms of this Agreement. Information about the rules and procedures of JAMS and AAA is available through multiple channels:
The JAMS rules are available from the Law Department and can also be found at http://www.jamsadr.com/rulesemployment-arbitration/, or by using a search engine such as http://www.google.com or http://www.bing.com to search for “JAMS Employment Arbitration Rules.” You can also get the rules and related information by calling JAMS at 800-352-5267.
The AAA rules are available from the Law Department and can also be found at http://www.adr.org/employment, or by using a search engine such as http://www.google.com or http://www.bing.com to search for “AAA Employment Arbitration Rules.” You can also get the rules and related information by calling AAA at 800-778-7879.
7.4 Selection of Neutral Arbitrator
(a) The arbitrator will be mutually selected by the parties. The arbitrator will be a retired federal or state court judge, unless the parties mutually agree to waive this requirement in a particular case.
(b) In the event the parties do not mutually choose an arbitrator, the arbitrator (retired federal or state court judge) will be selected as follows: JAMS (or AAA as applicable), will give each party a list of nine (9) arbitrators (subject to the qualifications listed above) drawn from its panel of arbitrators. Each party will have ten (10) calendar days to strike all names on the list it deems unacceptable. If only one common name remains on the lists of all parties, that individual will be designated as the arbitrator. If more than one common name remains on the lists of all parties, the parties will strike names alternately from the list of common names, with the party to strike first to be determined by a coin toss, until only one remains. If no common name remains on the lists of all parties, JAMS (or AAA as applicable), will furnish an additional list of nine (9) new arbitrators from which the parties will strike alternately, with the party to strike first to be determined by a coin toss, until only one name remains. That person will be designated as the arbitrator. If for any reason, the individual selected cannot serve, JAMS (or AAA as applicable), will issue another list of nine (9) new arbitrators and repeat the alternate striking selection process. If for any reason JAMS or 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, who shall act under this Agreement with the same force and effect as if he or she had been specifically named herein.
7.5 Arbitration Process
(a) Both parties may be represented by attorneys during all stages of the arbitration process at their own expense, subject to Section 7.7(e).
(b) The following discovery limits shall apply:
i. Each party may take up to three (3) depositions, including any expert depositions, but may not exceed 24 hours of total deposition time.
ii. There shall be no representative depositions of the kind described in Rule 30(b)(6) of the Federal Rules of Civil Procedure or analogous state rules of procedure.
iii. Each party may propound up to 15 interrogatories and 15 document requests to the other party.
(c) Discovery disputes must be submitted to and resolved by the arbitrator. The arbitrator shall have exclusive authority to entertain requests for additional discovery, and to grant or deny such requests, based on the arbitrator’s determination whether additional discovery is warranted by the circumstances of a particular case and with due consideration for the purpose of this Agreement, which is to provide a speedier and more efficient process for fairly deciding disputes.
(d) Either party may file dispositive motions, such as motions for summary judgment and motions to dismiss claims, at any stage of the case and the arbitrator will apply the standards governing such motions under the Federal Rules of Civil Procedure.
(e) The arbitrator shall have authority to decide on an individual basis all claims and defenses and to award remedies and relief to the same extent as would be available if the claim were litigated in court.
7.6 Arbitration Hearing
(a) Unless otherwise agreed to by the parties or ordered by the arbitrator, the arbitration hearing will commence within 180 days after the demand for arbitration is served on the defendant.
(b) The arbitration hearing will be held at a location that is within the Federal Judicial District encompassing Employee’s primary Amtrak work location, or any other location agreed to by the parties.
(c) An arbitration hearing under this Agreement will last no more than three 8-hour days unless the arbitrator determines that additional time is needed.
(d) The parties will have the right to present admissible evidence in support of their claims and defenses, including documentary evidence, witness testimony, and cross-examination of witnesses.
(e) The arbitrator will apply the Federal Rules of Evidence.
(f) In relation to the claims asserted, the arbitrator shall apply the applicable substantive state and/or federal law of the state in which the claims arose, including, but not limited to, applicable statutes of limitations (and the law of remedies, if applicable). The arbitrator is without jurisdiction to apply any different substantive law or law of remedies.
(g) The arbitration hearing will be recorded by a stenographer or videographer (or other means) only if Employee or Amtrak requests that it be recorded. If both Employee and Amtrak request a recording, the cost will be shared equally. Otherwise, the party requesting the recording will pay the costs.
(h) The arbitrator will issue a concise written decision setting forth his/her findings and ruling on the matter. The arbitrator will make every effort to issue his/her written decision within 45 days after completion of the hearing.
(i) The arbitrator’s decision will be final and binding and may be enforced in a court of competent jurisdiction. However, except in a proceeding to enforce or vacate the arbitrator’s decision, all arbitrator decisions and opinions will be non-precedential, meaning they will not apply to any other dispute by and between any other Employee and Amtrak.
7.7 Consideration, Costs and Attorney’s Fees
(a) The mutual obligations by Amtrak and Employee to arbitrate disputes provide consideration for this Agreement.
(b) If Employee is the plaintiff or petitioner, he/she will be responsible for paying the JAMS (or AAA) initial arbitration filing fee, but in no event will Employee be responsible for any portion of those fees in excess of the filing or initial appearance fees applicable to court actions in the court of competent jurisdiction where the arbitration will be conducted.
(c) Other than the portion of the initial filing fee to be paid by Employee (however, Employee will not be responsible for any portion of those fees in excess of the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted), Amtrak will pay all costs and expenses unique to arbitration, including without limitation the arbitrator’s fees, as charged by JAMS (or AAA), in accordance with the respective rules of JAMS (or AAA).
(d) If Employee is the prevailing party after the arbitration hearing, as additional consideration for this Agreement, Amtrak will reimburse Employee for the portion of the initial filing fee he/she paid and any costs awarded by the arbitrator.
(e) If Employee is the prevailing party in a case where attorneys’ fees are recoverable under applicable substantive law, the arbitrator may award reasonable attorneys’ fees as required by law as part of any final award.
(f) In the event the law (including the common law) of the jurisdiction in which the arbitration is held requires a different allocation of arbitral fees and costs in order for this Agreement to be enforceable, then such law shall be followed as determined by the arbitrator.
8.0 JUDICIAL REVIEW
In accordance with section 13.0 below, the arbitrator’s final written award is subject to judicial review under the Federal Arbitration Act.
9.0 CLASS ACTION WAIVER: NO CLASS AND/OR COLLECTIVE ACTIONS
9.1 Notwithstanding the rules of the arbitral body (JAMS or AAA), all Covered Claims must be arbitrated on an individual basis only and may not be brought or pursued as a class action or collective action (whether as a class member, representative, opt-in, opt-out, or otherwise), and the arbitrator will have no authority to hear or preside over a class or collective action. This is a “Class Action Waiver.”
9.2 The Class Action Waiver will be severable from this Agreement if there is a final judicial determination that the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such case, the class or collective action must be litigated in a civil court of competent jurisdiction—not in arbitration.
9.3 Regardless of anything else in this Agreement and/or any rules or procedures that might otherwise be applicable by virtue of this Agreement, any claim that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable, may be determined only by a court of competent jurisdiction and not by an arbitrator.
9.0A Private Attorneys General Act (“PAGA”) Individual Action Requirement
9.1A Employee and Amtrak agree to arbitrate PAGA claims on an individual basis only. Therefore, any claim by Employee under PAGA to recover for unpaid wages, civil penalties, or other individual relief must be arbitrated under this Agreement. Employee and Amtrak also agree that Employee will not pursue any non-individual PAGA claims in court until after the arbitrator makes a final determination as to Employee’s status as “aggrieved,” and, then, only if the determination is that Employee was “aggrieved”; the arbitrator, and not any court, will determine Employee’s alleged status as “an aggrieved employee.” The arbitrator is without authority to preside over any PAGA claim by Employee on behalf of any other person or joined by or consolidated with another person’s or entity’s PAGA claim.
9.2A This PAGA Individual Action Requirement clause will be severable from this Agreement if there is a final judicial determination that it is invalid, unenforceable, unconscionable, void or voidable. In such case, the PAGA action must be litigated in a civil court of competent jurisdiction—not in arbitration—but the portion of the PAGA Individual Action Requirement that is enforceable shall be enforced in arbitration.
9.3A Regardless of anything else in this Agreement and/or any rules or procedures that might otherwise be applicable by virtue of this Agreement, any claim that all or part of the PAGA Individual Action Requirement is invalid, unenforceable, unconscionable, void or voidable, may be determined only by a court of competent jurisdiction and not by an arbitrator.
10.0 SEVERABILITY
If any aspect of this Agreement is determined to be legally unenforceable, the affected provision will not apply in that proceeding, but all other terms will remain in effect and enforceable. However, under no circumstances may the arbitrator hear or preside over any class, collective, or other claim joined by or consolidated with another person’s or entity’s claim, unless all parties agree in writing.
11.0 NO RETALIATION
Amtrak strictly prohibits retaliation against any employee who, in good faith, submits a demand for arbitration and/or participates as a witness through the arbitration process. Any concern about retaliation should be promptly reported to the Amtrak Helpline by calling 1-855-SPKAMTK (775-2685) or via the web at speakupamtrak.com. Any employee, supervisor or manager who engages in retaliatory behavior will be subject to disciplinary action, up to and including termination.
12.0 ARBITRABILITY
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the validity, applicability, enforceability, unconscionability, or waiver of this Agreement. However, the preceding sentence does not apply to any claims under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, and, as stated above in the Class Action Waiver and PAGA Individual Action Requirement (Sections 9.0 and 9.0A), it does not apply to the Class Action Waiver or PAGA Individual Action Requirement.
13.0 APPLICABLE LAW
In rendering the award, the arbitrator shall determine the rights and obligations of the parties according to the substantive laws applicable to the claims and defenses at issue in the case, including applicable statutes of limitations.
Amtrak and Employee expressly agree and stipulate that the Federal Arbitration Act (9 U.S.C. §1 et seq.) will apply to this Agreement, which evidences a transaction involving commerce. If the Federal Arbitration Act does not apply, Amtrak and Employee mutually stipulate and agree that the Texas Arbitration Act will apply. If the Texas Arbitration Act does not apply, Amtrak and Employee mutually stipulate and agree that the applicable state arbitration act, if any, of the state where the dispute took place will apply.
14.0 ENTIRE AGREEMENT
This Agreement is intended to set forth the complete terms and conditions of Amtrak’s arbitration program. In the event an oral or written statement is made about Amtrak’s arbitration program that in any way conflicts with a provision contained in this document, including statements made by Amtrak personnel or statements contained in any documents other than this Agreement, the provisions of this Agreement document will govern. Nothing in this Agreement should be construed as creating a contract of guaranteed employment for any Amtrak employee or as otherwise altering the “at will” nature of employment with Amtrak.
This Agreement survives the termination of any Employee’s employment (or expiration of any benefit of employment) with Amtrak. This Agreement supersedes any prior policy or agreement regarding the subject matter of dispute resolution.
AGREED BY AMTRAK AND EMPLOYEE
I HAVE CAREFULLY READ AND UNDERSTAND THIS ARBITRATION AGREEMENT AND AGREE TO ITS TERMS. BY SUBMITTING MY APPLICATION AND/OR USING AN ELECTRONIC METHOD OF ASSENT ON THE AGREEMENT OR ON SEPARATE SCREEN (IN WHICH CASE YOUR NAME, SIGNATURE AND DATE MAY NOT APPEAR ON THIS AGREEMENT), I AM AGREEING TO THIS AGREEMENT AND AGREE TO ARBITRATE CLAIMS COVERED BY THIS AGREEMENT. ADDITIONALLY, I AUTHORIZE THE USE OF AN ELECTRONIC SIGNATURE TO SHOW MY ACCEPTANCE AND AGREEMENT TO THIS AGREEMENT AND UNDERSTAND AND ACKNOWLEDGE THAT AN ELECTRONIC SIGNATURE IS AS VALID AND HAS THE SAME LEGAL EFFECT AS AN INK SIGNATURE.
AGREED: AMTRAK
1 In this Agreement the term “independent contractor” refers to a person who performs work for or on behalf of Amtrak pursuant to a written contract between Amtrak and such person or an entity that he/she owns or controls.
2 “Amtrak” includes Amtrak’s subsidiaries, affiliates, predecessors, and successors.
