STANDARD EMPLOYMENT RULES AND PROCEDURES
(Effective 07/25/07)



Rule No. 1: Purpose   [ back to top ]

National Arbitration and Mediation (hereinafter "NAM") has established this set of employment dispute resolution rules and procedures, culminating in formal arbitration, to provide a fair, private, expeditious, final, and binding means for resolving legal disputes arising out of or relating to employment disputes, without the need for litigation in federal, state, or local courts. These Employment Dispute Resolution Rules and Procedures (hereinafter "Rules") shall govern arbitrations held pursuant to NAM's Rules, whether brought by an Employee or by the Employer. The term "Employee" includes applicants, employees, and former employees. These Rules are written to guide an Employee through the arbitration process; however, they apply with full force and effect to both Employee and Employer.


Rule No. 2: Claims Subject to Arbitration   [ back to top ]

Except as otherwise limited herein, any and all employment-related legal disputes, controversies, or claims arising out of or relating to an Employee's application or candidacy for employment, employment, or cessation of employment with an Employer or one of its affiliates shall be settled exclusively by final and binding arbitration through NAM before a neutral, third-party Arbitrator selected in accordance with these Rules. Arbitration shall apply to any and all such disputes, controversies, or claims whether asserted against the Employer and/or against any employee, officer, alleged agent, director, or affiliated company.

All previously unasserted claims arising under federal, state, or local statutory or common law shall be subject to arbitration. Merely by way of example, these claims include, but are not limited to, claims arising under the Age Discrimination in Employment Act (ADEA): Title VII of the Civil Rights Act of 1964, as amended, including the amendments of the Civil Rights Act of 1991, the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), 42 U S C § 1981, as amended, including the amendments of the Civil Rights Act of 1991, state discrimination statutes, state statutes and/or common law regulating employment termination, the law of contract, or the law of tort, including, but not limited to, claims for malicious prosecution, wrongful discharge, wrongful arrest/wrongful imprisonment, intentional/negligent infliction of emotional distress, negligent hiring, negligent retention, or defamation. Statutory or common law claims alleging that the Employer retaliated or discriminated against an Employee shall be subject to arbitration.

Claims for state employment insurance (e.g. unemployment compensation, worker's compensation, or disability compensation) or brought under the National Labor Relations Act shall not be subject to arbitration.


Rule No. 3: Dismissal/Stay of Court Proceedings   [ back to top ]

By signing a Dispute Resolution Agreement to Arbitrate a dispute involving an Employee's employment with Employer, an Employee agrees to resolve through arbitration all claims described in or contemplated by Rule 2. If an Employee files a lawsuit in court to resolve claims subject to arbitration, the Employee agrees that the court shall dismiss the lawsuit and require the Employee to arbitrate the dispute.

If an Employee files a lawsuit in court involving claims that are, and other claims that are not, subject to arbitration, the Employee agrees that the court shall stay litigation of the non-arbitrable claims and require that arbitration take place with respect to those claims subject to arbitration. The Employee further agrees that the Arbitrator's decision on the arbitrable claims, including any determinations as to disputed factual or legal issues, shall be entitled to full force and effect in any subsequent proceeding or any non-arbitrable claims.


Rule No. 4: Commencement of Arbitration   [ back to top ]

  1. Procedure
    An arbitration shall be commenced by filing the attached Arbitration Request Form along with a Filing Fee to NAM, Attention: Employment Arbitration Department, 990 Stewart Avenue, Garden City, New York, 11530. Additionally, the Arbitration Request Form may be downloaded from NAM's website (www.namadr.com) under the Employment section, or by requesting a copy of the Arbitration Request Form from NAM by telephone at 800-358-2550 Att: Employment Arbitration Department. NAM shall then send such form to the Employer for their response.
  2. Time Limits

    1. Filing of Request for Arbitration
      The Arbitration Request Form shall be submitted within the same time limits as if a claim was to be filed in the applicable court of law. A party's failure to initiate an arbitration within such time limit shall constitute a waiver with respect to that dispute.
    2. Response
      Within twenty-one (21) calendar days of receipt of an Arbitration Request Form, the opposing Party shall send a Response to the claiming Party and to NAM via first-class mail, postage prepaid, overnight mail or via hand delivery. The Response shall describe the opposing Party's position regarding the allegations in the Arbitration Request Form.
  3. Notice/Other Filings
    All communications, notices, or filings, including discovery requests and responses, shall be in writing and shall be deemed to have been given if (i) delivered by messenger (ii) overnight mail or (iii) first-class mail, postage prepaid;

    Arbitration Request Form
    To NAM at: NAM
    Att: Employment Arbitration Department
    990 Stewart Avenue, First Floor
    Garden City, New York, 11530
    Other Filings
    If to the Employer: to the Arbitration Coordinator or General Counsel
    Or Senior Management at the Employer's Address

              OR

    to the Employer's attorney as designated by the Employer
    If to the Employee: to the Employee's address of record as it appears on the Arbitration Request Form

              OR

    to the Employee's attorney as designated in the Arbitration Request Form or later designated in writing by the Employee


Rule No. 5: Selection of an Arbitrator   [ back to top ]

The Employer and the Employee shall participate equally in the selection of an Arbitrator to decide the arbitration. Within twenty-one (21) calendar days after Employer has responded to the Employee's Arbitration Request Form, NAM shall provide a panel of seven (7) neutral Arbitrators with experience in employment disputes. The Employer and the Employee then shall have the opportunity to review the background of the Arbitrators by examining the materials provided by NAM. Within seven (7) calendar days after the panel composition is received, the Employee and the Employer each shall inform NAM which Arbitrators the Parties find unacceptable for deciding the dispute. NAM will appoint an Arbitrator from among the named individuals the Parties found acceptable. If all of the Arbitrators on the first panel furnished by NAM are stricken by the parties as unacceptable for deciding the dispute, within fourteen (14) days NAM shall furnish an additional panel of seven (7) Arbitrators from which each Party may strike up to three (3) Arbitrators. NAM will then appoint an Arbitrator from the remaining names. In the event that NAM determines that a conflict exists which might compromise the neutrality of the remaining Arbitrator(s), within fourteen (14) days NAM shall submit a third panel of five (5) Arbitrators, from which each party may strike one (1) name. NAM will then appoint an Arbitrator from the remaining individuals. At any time during the administration of the case, NAM shall have the authority, in its sole discretion, to remove and/or replace an Arbitrator upon a determination that a conflict exists that might compromise the neutrality of the Arbitrator. In such instances, NAM shall replace the Arbitrator with one of the remaining Arbitrators previously found acceptable by the parties.


Rule No. 6: Pre-Hearing Conference   [ back to top ]

Within ten (10) days after the appointment of the Arbitrator, the Arbitrator may conduct a pre-hearing conference (via telephone or in-person) at which the parties and the Arbitrator may address some or all of the following: (i) the claims asserted by the parties; (ii) setting a date for the arbitration and (iii) the scheduling and procedures of the arbitration.


Rule No. 7: Time and Place of Arbitration   [ back to top ]

The arbitration hearing shall be held at the offices of, or location selected by, NAM in the city nearest the location where the Employee was or sought to be employed by the Employer, unless the Parties agree otherwise. If NAM does not select an arbitration location within fifty (50) miles of the city of the Employee's last employment with the Employer, the Employee and the Employer shall designate a mutually amenable location at which to hold the arbitration.

The Parties and the Arbitrator shall make every effort to see that the arbitration is completed, and an award rendered, as soon as possible. There shall be no extensions of time or delay of an arbitration hearing except in cases where both Parties consent to the extension or delay, or where the Arbitrator finds such a delay or extension necessary to resolve a discovery dispute or other matter relevant to the arbitration.


Rule No. 8: Representation   [ back to top ]

Both the Employee and the Employer shall have the right to be represented by counsel.


Rule No. 9: Discovery   [ back to top ]

  1. Initial Disclosure
    Within fourteen (14) calendar days following the appointment of an Arbitrator, the Parties shall provide each other with copies of all documents (except for privileged documents that are protected from disclosure because they involve attorney-client, doctor-patient, or other legally privileged or protected communications or materials) upon which they rely in support of their claims or defenses. Throughout the discovery phase, each Party is under a continuing obligation to supplement its disclosure.
  2. Other Discovery

    1. Interrogatories/Document Requests
      Each party may propound up to twenty (20) interrogatories (including subparts) to the opposing Party. Interrogatories are written questions asked by one Party to the other, which must be answered under oath. The Parties may also make requests for up to 30 documents upon which the responding Party relies in support of its answers to the interrogatories. Answers to interrogatories must be served within twenty-one (21) calendar days of receipt of the interrogatories.
    2. Depositions
      A deposition is a statement under oath that is given by one Party in response to specific questions from the other Party, and it is usually recorded or transcribed by a court reporter. Each Party shall be entitled to take the deposition of up to three (3) individuals of the Party's choosing. The Party taking the deposition shall be responsible for all costs associated therewith, such as the cost of a court reporter and the cost of a transcript.
    3. Additional Discovery
      Upon the request of any Party and a showing of substantial need, the Arbitrator may permit additional discovery, but only if the Arbitrator finds that such additional discovery is not overly burdensome and will not unduly delay conclusion of the arbitration.
  3. Discovery Disputes
    The Arbitrator shall decide all disputes related to discovery. Such decisions shall be final and binding on the Parties. In ruling on discovery disputes, the Arbitrator shall be guided by the discovery rules contained in the Federal Rules of Civil Procedure.
  4. Time for Completion of Discovery
    All discovery must be completed within ninety (90) calendar days after the selection of the Arbitrator except for good cause shown. To expedite the arbitration, the Parties may initiate discovery prior to the appointment of the Arbitrator.

Rule No. 10: Hearing Procedure   [ back to top ]

  1. Witnesses
    Witnesses shall testify under oath, and the Arbitrator shall afford each Party a sufficient opportunity to examine its own witnesses and cross-examine the other Party's witnesses. Either Party may issue subpoenas compelling the attendance of any other person necessary for the issuing Party to prove its case.

    1. Subpoenas
      A subpoena is a command to an individual to appear at a certain place and time and give testimony. A subpoena also may require that the individual bring documents when he or she gives testimony. The Arbitrator shall have the authority to enforce and/or cancel such subpoenas provided that such subpoenas are issued no less than ten (10) calendar days prior to the commencement of an arbitration hearing or deposition. The Party issuing the subpoena shall be responsible for the fees and expenses associated with the issuance and enforcement of the subpoena and with the attendance of the subpoenaed witness at the arbitration hearing.
    2. Sequestration
      The Arbitrator shall ensure that all witnesses who will testify at the arbitration are not influenced by the testimony of other witnesses. Accordingly, the Arbitrator may sequester all witnesses who will testify at the arbitration, provided that the Arbitrator shall permit the Employee bringing the arbitration and the Employee's designated representative to remain throughout the arbitration, regardless of whether they testify at the hearing.
  2. Evidence
    The Parties may offer evidence that is relevant and material to the dispute and shall produce any and all non-privileged evidence that the Arbitrator deems necessary to a determination of the dispute. The Arbitrator need not specifically follow the Federal Rules of Evidence, although the Arbitrator may consult them to resolve questions regarding the admissibility of particular matters.
  3. Burden of Proof
    Each Party bears the burden of proving its claim or claims by a preponderance of the evidence. To prevail, the Party must prove a violation of applicable substantive law.
  4. Briefing
    Each Party shall have the opportunity to submit one pre-hearing brief and one post-hearing brief in support of its position. Briefs, which are written statements of facts and law, shall be typed and shall be limited in length to twenty (20) double-spaced pages.
  5. Transcription
    The Parties may arrange for transcription of the arbitration by a certified reporter. The Employer is responsible for the costs of the reporter and of the transcript for the Arbitrator, if any. Each Party shall pay for its own copy of the transcript, if any.
  6. Consolidation

    1. Claims
      The Arbitrator shall have the power to hear as many claims as the Parties may have against one another consistent with Rule 2 of these Rules. The Arbitrator may hear additional claims that were not mentioned in the Arbitration Request Form, provided the Party adding claims notifies the other Party at least thirty (30) calendar days prior to a scheduled arbitration, the additional claims are timely as of the date on which they were added, and the other Party is not prejudiced in its defense by such addition.
    2. Parties
      The Arbitrator shall not consolidate claims of different Employees into one proceeding, nor shall the Arbitrator have the power to hear arbitration as a class action (a class action involves an arbitration or lawsuit where representative members of a large group who claim to share a common interest seek relief on behalf of the group), unless allowed by applicable law.
  7. Confidentiality
    All aspects of an arbitration pursuant to these Rules, including the hearing and record of the proceeding, shall be confidential and shall not be open to the public, except (i) to the extent both Parties agree otherwise in writing, (ii) as may be appropriate in any subsequent proceeding between the Parties, or (iii) as may otherwise be appropriate, in response to a governmental agency or legal process.

    All settlement negotiations, mediations, and the dresults thereof shall be confidential.

Rule No. 11: Substantive Choice of Law   [ back to top ]

The Arbitrator shall apply the substantive law of the state in which the Employee is, was, or sought to be predominantly employed. For claims arising under federal law, the Arbitrator shall follow the substantive law applicable to the United States District Court for the District in which the Employee is, was or sought to be predominantly employed.


Rule No. 12: Arbitrator Authority   [ back to top ]

The Arbitrator shall conduct the arbitration and shall have the authority to render a decision in accordance with these Rules in a manner designed to promote rapid and fair resolution of disputes. To that end, seven (7) days prior to the scheduled arbitration hearing, the Parties shall participate in a telephone conference with the Arbitrator. Where a Party has challenged the legal sufficiency of an asserted claim or defense in a pre-hearing brief, each Party may be heard. A Party making such a challenge should file the pre-hearing brief as early as possible to permit due consideration of the issue. The Arbitrator shall strike any legally deficient claim and/or defense by a ruling communicated to the Parties at least five (5) days prior to the scheduled arbitration hearing.

  1. Jurisdiction
    The Arbitrator's authority shall be limited to deciding the claims, counterclaims, and defenses submitted for arbitration. Unless the Employee is subject to a contract providing for the employment of the Employee under specified terms or for a given duration, the Employee's employment remains alterable at the discretion of the Employer and/or terminable at any time, at the will of either the Employee or the Employer, with or without just cause. Accordingly, the Arbitrator shall have no authority to require that the Employer have "just cause" to discipline or discharge an Employee unless specifically required by federal, state, or local law, or as a remedy for a violation of applicable law by the Employer with respect to the Employee.
  2. Sanctions
    The Arbitrator shall have the power to award sanctions against a Party for the Party's failure to comply with these Rules or with an order of the Arbitrator. These sanctions may include an assessment of costs, prohibitions of evidence or, if justified by a Party's wanton or willful disregard of these Rules, an adverse ruling in the arbitration against the Party who has failed to comply.

Rule No. 13: Awards   [ back to top ]

Within twenty-eight (28) calendar days after receipt of post-hearing briefs, if any, the Arbitrator shall mail a written award to NAM specifying appropriate remedies, if any. In the Arbitrator's discretion, the award may include findings of fact and conclusions of law. The Parties to the arbitration shall be provided with a copy of the Arbitrator's award.


Rule No. 14: Costs and Fees   [ back to top ]

  1. Costs Other than Attorney's Fees
    The Employer shall pay NAM's Administrative fees and NAM's hourly fees for the total time spent by the Arbitrator and shall advance all other costs due NAM related to the costs of the arbitration. The Employee shall pay NAM the Filing fee, which shall be sent to NAM with the Arbitration Request Form. Each Party shall advance its own incidental costs, such as photocopying, costs of hearing transcripts, subpoenas, or costs of producing witnesses or other evidence. A copy of NAM's Employment Arbitration Fee schedule has been attached to these Rules. Additionally, NAM's Employment Arbitration Fee Schedule may be downloaded from NAM's website (www.namadr.com) under the Employment section, or by requesting a copy of NAM's Employment Arbitration Fee Schedule from NAM by telephone at 800-358-2550 Att: Employment Arbitration Department.
  2. Attorney's Fees
    In the absence of an award under Rule 15, each Party shall be liable for its own attorney's fees.

Rule No. 15: Remedies and Damages   [ back to top ]

If the Arbitrator finds for the Employee, the Arbitrator, in his or her discretion, may award appropriate relief, including costs, in accordance with applicable law.

If appropriate relief includes reinstatement, such reinstatement will be to the position of employment the Employee held or, if such reinstatement is impractical, to a comparable position at the location of the Employee's last employment. If reinstatement at the place of the Employee's last employment is not practical, reinstatement will be to a comparable position at the Employer in the same general geographic market area.

The Arbitrator may award an assessment of costs as a sanction under Rule 12(B).

The Arbitrator is authorized to award attorneys' fees in accordance with applicable law. Any award shall be reasonable in light of the amount and complexity of work involved in the arbitration and in accordance with customary billing rates of attorneys in the geographic area in which the arbitration is held.


Rule No. 16: Settlement   [ back to top ]

The Parties may settle their dispute at any time. Prior to closure of the arbitration hearing, the Parties may settle the case without involvement of the Arbitrator. Once the hearing has closed, settlement may take place only with approval of the Arbitrator. At any point prior to the Arbitrator's issuance of an award, the Parties may, by agreement, refer their dispute to mediation before a mediator provided by NAM.


Rule No. 17: Enforceability   [ back to top ]

The award rendered by the Arbitrator shall be enforceable and subject to the Federal Arbitration Act, 9 U S C § 1 et seq, and the state law in which the Employer is located, regardless of the state in which the arbitration is held or the substantive law applied in the arbitration.


Rule No. 18: Appeal Rights   [ back to top ]

The award rendered by the Arbitrator shall be final and binding as to both the Employee and the Employer. Either Party may appeal the Arbitrator's decision in court in accordance with the appeal procedures of the Federal Arbitration Act, 9 U S C § 1 ~ or the applicable state law where the Employer is located.


Rule No. 19: Severability/Conflict with Law   [ back to top ]

In the event that any of these Rules agreed upon by the Parties is held to be in conflict with a mandatory provision of applicable law, the conflicting Rule or Procedure shall be modified automatically to comply with the mandatory provision of applicable law. In the event of an automatic modification with respect to a particular Rule or Procedure, the remainder of these Rules shall not be affected. An automatic modification of one of these Rules or Procedures shall be applicable only in the Jurisdiction in which it is in conflict with a mandatory provision of law. In all other jurisdictions, these Rules shall apply in full force and effect.



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