an arbitration clause must clearly and unmistakably establish that it applies to statutory claims the breathless clause to the contrary applies only to a dispute between dancer and club under the right sole agreement on three occasions new jersey courts have held that clauses limited to disputes arising under an agreement like the one here do not reach statutory employment claims even if that clause is located and an employment contract if you want to do anything other than just follow the non presidential opinion hers well that would be fine with me your honor and my correct in understanding that the trial judge in this case did not have the benefit of that opinion when she rule that's correct you dispute arising under the agreement that language is insufficient to reach statutory claims breathless does not cite any new jersey opinions to the contrary instead as this recorded they rely on herself and as your honor indicated that case was brought before this court and the court reads the exact opposite conclusion which i'm going to do my best mate please the court my name is marc grossman i represent press when you come into court and there's been a change in the law particularly on a case that you're a lie upon heavily in your brief you sort of appear before the circuit a little bit out of breath so i'm going to do my best hands i'm not going there the claim here as defined by ms moon as whether the arbitration clause and compass is statutory where huge claims really takes this case device and into our view is that there's a primary issue you have to get to first and that is the arbitration clause does this contract govern and determine whether ms noonan was an employee of the contract issue in their her celt case is different from the contract issue here the arbitration provision isn't let's start with that the arbitration provision in her stealth in my view doesn't satisfy the new jersey supreme court standard in adelaide it's not rod and encompassing and would lead the reader down the path of arbitration because there's no mention clear mention of rave waiver of your right to a jury trial the contract and her style is very different from the contract in our case in breathless we know we have a clearly defined term the number argue that the district court's opinion herzfeld supported your argument here we've argued that here to this court before the law changed it's really difficult position to step up here now and explain to the court why it's different but what you do after the fact unfortunately i'm i'm i'm doing this after the fact is now looking for why her style is distinguishable and the two reasons that i see it are that one the underlying contract in her cell doesn't have a term of employment and two the arbitration provision is different i think what this court could do and should do here is not follow the third circuit's ruling in herself for a few reasons one the real issue here is whether and we take a look at the complaint is moon and employee that is really the threshold issue and i think that you make a good argument that it would be counterproductive to say the least had you're quiet putting the word employee in the agree right but notwithstanding that argument is it not the case that the new jersey state court decisions which we have to follow whether we like them or not are are signaling pretty strongly in favor of employee rights here as opposed to employers right i completely agree with that observation except the nuance here is that the these are all lab cases we're not in a lab case and why is that important because in  iosa there was a presumption when the court got to making the rulings that all of these plaintiffs were employees except and i also where it was an interesting commercial dispute reverse discrimination would wash in about it differently in this it's the very very first page of of my brief summarizing the argument on the focus of determining the dispute whether falls within the scope of a contract or of a contractual arbitration provision the focus has to be on the factual allegations in the complaint not the legal cause of action asserted so the legal cause of action asserted are the statutory claims but the factual allegations in the complaint and it's literally throughout the complaint i'm looking at appendix a nineteen paragraph thirty six at all times material here court and what the district court ruled in examining the contract issue was the arbitration clause was broad enough in this contractual context to take that threshold question as to whether moon was an employee or not and t that up for the arbitrator now the arbitrator determines will go through my analysis and second if the arbitrator determines that moon was an employee or the rest of the claims are trouble probably not under the but if the arbitrator determines that moon was not an employee we don't even reach that that question as to whether these statutory claims go before the arbitration panel or go get resolved in court that's the threshold question and because the law is seemingly very sure on the issue and we've seen it in the case law of course that's what ms moon is focusing on moon is focusing on skip over part one and go right to part two and focusing all the statutory claims have to be in court they can't be arbitrary so let me go through it the arbitrator help me yes i want to help you go go back to the arbitration clause yes having won what is it about the arbitration clause that says the arbitrator or it your honor is correct it doesn't it doesn't say that but this clause is broad enough in that it satisfies adelaide's where the clause and garfunkel and i also that's what i'm not convinced about for this reason i don't have it right in front of you know but i think it says arising under this agreement or something like it does it mentions words like that or ar arising out of this agreement and then claim an issue here fact doesn't arise out of that independent contractor agreement it arises out of federal statutory law it arises out of the unit penn contract or agreement because the very first paragraph of the agreement talks about employment paragraph one unlike the agreement herzog it relates to the agreement i mean it there's there's clearly an intent on your client's part to render her an independent contractor and i think the other side would probably even agree with that but what i don't see if you can show me but what i don't see in this contract is a clear statement and new jersey adelies and other cases are seeming to be sticklers the judges in new jersey seem to be sticklers to employers that look and other contracting parties if you are going to force people into arbitration you better be clear and specific about what rights they must arbitrate and this agreement doesn't show me anything about moon being put on notice that she would have to arbitrat federal statutory rights well your honor that maybe so but the intent of the parties in this agreement not just breathless but also moon was too and it's right here it's in the writing the intent was that in a dispute between the dancer in the club under this agreement either may resolve either me requests to resolve the dispute by binding arbitration so let's take a look at what disputes are covered under the supreme foremost is paragraph one employment disputes there's an agreement dancer understands and agrees that he she is an independent contractor that is the threshold question that must be addressed here by way of arbitration and different than her dependent upon the fact she's working at this particular club so if i mean she says that inside this building where i work for someone to this agreement that i signed you know is really really dangerous and under osha i want to bring a federal case under osha i'm not seeking wages or overtime or any of that i want the dangerous conditions ameliorated has that claim been unable to bring that in federal court well since that sort of claim is defined by  is not dependent on the employment relationship then i think your honor is right there would be there is no binding here there's no she's not bound to arbitrate that claim that the difference in the fair labor standards act or just the way it's all latest she's only waive the right to go into federal court on a statutory claim that implicates the threshold decision of whether she's an employee or in the valley that is precisely my point so  it's not roger because your honor knows you have to read the contract in its entirety to determine what the parties meant when they see it when they said in disputes between the dancer in the club under this agreement and under this agreement is not just term of her employment with she's an independent contractor or an employee it's also under paragraph sex is an entirety of the agreement paragraph year where all of the agreements and understanding between i'm paraphrasing removed and breathless aren't capsulated in this agreement and the parties agreed with no room to maneuver elsewhere that ms moon is not an employee she wants to dispute that and it would vance these claims that she's entitled to wages overtime underpaid she has to first establish that she is an employee and that she now has a dispute under this agreement that's got to be arbitrated this language is broad enough under adelies it has a clear waiver of the right to litigate such claims and a court would have a jury trial it satisfies the language it in the suit between the dancer of the club under the entirety privett paragraph provision under the employment provision and the fair result here is that when you read this contract it's what the parties intended we can't look for some other meeting as to what the intent perhaps was and it's that language is set forth in the garfinkel case if you look at the intent expressed apparent in the writing this writing the contract that controls the intent in expressed in this contract as set forth is the standard in garfinkel is that if there is a dispute as to whether you're an independent contractor or an employee under paragraph one you bring that before the arbitrary if we lose and the arbitrator determines that we're an independent contractor perhaps all of these statutory claims have to be violent although not an area i don't think you've addressed bell hav probably not so in that case we held that a complaint alleging rights under the fair labor standards act did not arise quote pursuant to the terms of a collective bargaining agreement despite the fact that the remedy sought violated the terms of the c v s so why should we hold here that moon's complaint alleging rights under the same statute doesn't arise under the agreement despite the fact that the remedy she asked for would violate that agreement i'm not familiar with the language of the agreement in bell but the language here for arbitration is broad enough that it satisfies alway's it encompasses the employment relationship there's an entirety paragraph where the parties agreed that this agreement represents the entirety of their arrangement and under those facts you have to first address the state that the status of the parties particularly here where when you look at ms moon's complaint the very first thing she says she has to do the very first element she has to allege is that she is an employee of preface and she does so arguing under the c she's made an allegation that's contrary to representation in the agreement she has with your client but how does that deny that she's not seeking relief under that agreement she's seeking relief under new jersey state law and under the federal fair labor standards act because the first thing you do with taking a look at this case is the very first thing you do is you have to focus on the factual allegations of the complaint and our  the district of new jersey affirmed by the circuit and it's in page three of my brief discusses that the very first factual allegation by ms move and she she has to prove this is true if she's not an employee she's not entitled to any relief under any of the three statutes that she cites in her complaint her very first step her very first factual allegation is that she's an employee if she's not she is out of luck if she is an employee then we then we are here before this court and all of these issues all of this in my view is premature it's not right yet for the court to decide this it's not right because we don't have an arbitrator deciding first issue an employee or she not an employee we know that's the number one term here that's absent herzog the new jersey your green new jersey law requires a quote clear and unmistakable and quote statement in order for an arbitration clause to waive claims not yet right thank you very much i appreciate the time you very much  notice that they're waving their right to a jury trial right close is correct their arbitration clause does put moon on notice that she's waving her right to a jury trial but adelies had nothing to do with what language you need to put their person on notice that they're waving their rights or george trial for statutory claims there's a huge difference one has to do with the substantive language of the waiver  other has to do with the scope this issue is about scope so breathless asserts that the threshold issue here is whether or not miss moon is an employee so your your position is that the threshold  breathless asserts that the threshold issue is whether or not mr moon is employed that's incorrect the threshold this issue is who gets to decide whether or not miss moon is an employee or an independent contractor every single case i didn't in the dispute in question that's where you apply new jersey law well but this dispute in question goes to her wages right if those are all isn't isn't the case all about whether she's getting paid the right amount of money is about the fact that she wasn't paid any money ok and so she should be paid money she wasn't paid that's the crux of your complaint in addition yes your honor it isn't it correct that the answer to that question whether she's should be paid money depends on whether she's an employee or an independent contractor that's correct and i think good segue into my next point which is that she knows that that dispute needs to go to an arbitrator she signed an agreement saying that that needs to go to arbitration respected i respectfully disagree with iran or the independent contractor or what if she made a common law claim saying under the under the the common law of new jersey i'm owed money did she did she just about arbitration on that claim it would depend on the nature of that claim if when the reason the reason a lot of money is an employee of this club and employees need to be paid under new jersey law you know there's no war indentured servitude so no i have a claim under jersey common law which if to arbitrate that i'm not familiar with any common law coins that give you that sort of right of action so there are only statutory claims under new jersey state law and federal law yes your honor all right then then then the agreement the knowledge because the agreement says she needs to go to arbitration but you're saying she could possibly she couldn't have any claims that could be arbiter bill so we've got an agreement that makes no sense well i agree with that character characterization that it doesn't make any sense but the question is whether or not the scope of the arbitration clause in compas is the statutory claims well you're telling us it doesn't encompass any claims that's what i'm trying to get at i'm positing a scenario where it's easier for me to agree with your position if some claims are arbitrary bull and others aren't but what i hear you telling the panel is that is that there are no claims that she might have against this this employer or this strike that word against this business that would be our retrieval i've let me rephrase my point my point is if there are claims such as a breach of this contract or say breathless was over charging her for the stage setting aside all these issues ah that would be  the rights of the rental agreement you have a dispute under the rental agreement you concede that's arbitron yes and that's clear from the new jersey case law that some of those common law claims that are governed by the terms of a contract fall within the scope of the arbitration cla but when you're dealing with statutory employment claims you need something more in the arbitration clause you need more language and you have attrition clause here if you look at garfinkel if you look at case chart we provided it fall short  this agreement said moon agrees to arbitrate any claims arising under this agreement or any state or federal statutory claims she might have you had a garbage ration that would be an issue first impression but i believe so that would be so sufficient to put her on notice that she needs to arbitrator steps in tory claims you know evaluate this agreement try to determine  yes and that's the very conclusion that show twenty has made because the arbitration clause lacks that additional language there is no manifestation of the party's intent to arbitra statutory weights claims the independent contractor sidle contractor recital paragraph one that brought this refers to that is irrelevant to whether or not miss moon is an employee doesn't mean they are necessarily new and a contractor under the economic realities tast under the a b c test in new jersey it is not even a factor therefore it has nothing to do with her