devoid of detail, that Plaintiffs’ waivers of their respective rights to jury trials were not
voluntary and knowing, /.e., there was no agreement to arbitrate. In support, they note
that “Resolution is a 19-page document with the arbitration clause beginning on page
13. Solutions is a 23-page document and the arbitration language beings on page 16.”
Doc. #27, PAGEID #348 (citing Doc. #19-1, PAGEID #166; Doc. #19-2, PAGEID #189).
“To expect employees to be able to decipher a long, legal document during orientation
or through an online acknowledgement{,]” Plaintiffs argue, “is not a valid waiver of
Plaintiffs’ right to a trial by jury.” /d. Further, Chini’s email describing Resolution
contained no reference to waiver of a jury trial, and stated that by clicking the “voting
button,” employees were merely acknowledging the existence of Resolution, not
agreeing to be bound by it. Doc. #19-3, PAGEID #204. Consequently, Plaintiffs claim,
they did not agree to arbitrate their wage and hour claims at the expense of being able
to bring a FLSA claim before a jury, and the Motion to Compel should be overruled.
Doc. #27, PAGEID #347-48 (citing U.S. Const. am. VII; Hergenreer v. Bickford Senior
Living Group, LLC, 656 F.3d 411, 420 (6th Cir.2011); Jones v. U-Haul Co. of
Massachusetts & Ohio Inc., 16 F. Supp. 3d 922, 940 (S.D. Ohio 2014) (Graham, J.)).
Contrary to Plaintiffs’ claim that employees were expected to “decipher a long,
legal document during orientation[,]” Doc. #27, PAGEID #348, Mason was sent a copy
of the Solutions handbook on November 5, 2014, and returned to Defendant her signed
“acknowledgment agreeing to Solutions on November 17, 2014[.]” Doc. #33-1, J 3(a),
PAGEID #394 (citing Doc. #19-3, PAGEID #237-38). Similarly, Partridge was sent a
copy of the Solutions handbook more than one month prior to the beginning of her

employment (the date on which her signed acknowledgment was due), and she

14


employed by Defendant. All named Plaintiffs and all but three of the opt-in Plaintiffs
were employed by Defendant on or after December 1, 2015. Doc. #19-3, 9 11, PAGEID
#200; Doc. #33-1, | 5, PAGEID #395.

The Resolution program description contained a section entitled “Exclusivity of
Arbitration for Covered Claims; Injunctive Relief; [and] Individual Nature of Covered
Claims[,]’ which stated that “Employees and [Defendant] are not allowed to litigate a
Covered Claim in Any Court.” Doc. #19-1, § |, PAGEID #158. Further, the section
required that “Employees . . . waive their right[s] to pursue any Covered Claims as, or
against, a representative or member of a class or collective action... . All Covered
Claims must be brought on an individual basis only in Resolution.” /d., PAGEID #159
(emphasis added). All named Plaintiffs continued working for Defendant after
December 1, 2015, but none is currently employed by Defendant. Doc. #1, Tf] 16-18,

PAGEID #3-4.

i. LEGAL STANDARD FOR MOTION TO COMPEL ARBITRATION

The United States Arbitration Act of 1925, 9 U.S.C. § 1 et seq., also known as
the Federal Arbitration Act (“FAA”), promotes “a liberal federal policy favoring arbitration
agreements,” and “questions of arbitrability must be addressed with a healthy regard for
the federal policy favoring arbitration.” Moses H. Cone Mem’! Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). “In deciding whether to
compel arbitration of a federal statutory claim, we first consider whether the statutory
claim is generally subject to compulsory arbitration. If the claim is not exempt from

arbitration, we must then consider whether the arbitration agreement is valid.” Morrison


provisions of section 216(b)—the section under which the collective action falls—are
nonwaivable, and that Courts have held that attempts to contract around those
provisions are illegal and, consequently, unenforceable. /d., PAGEID #340-41 (citing
Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 740, 101 S.Ct. 1437, 67
L.Ed.2d 641 (1981) (‘we have held that FLSA rights cannot be abridged by contract or
otherwise waived because this would ‘nullify the purposes’ of the statute and thwart the
legislative policies it was designed to effectuate.”); Brooklyn Sav. Bank, 324 U.S. at 707;
Long John Silver's Rest. v. Cole, 514 F.3d 345, 348 nn. 4-5 (4th Cir. 2008); Walthour v.
Chipio Windshield Repair, LLC, 944 F. Supp. 2d 1267, 1277 (N.D. Ga. 2013), affd 745
F.3d 1326 (11th Cir. 2014)).

Moreover, Plaintiffs argue that the collective action waiver means that Solutions
and Resolution do not accord rights at least as broad as those guaranteed under the
FLSA, and the waivers should be invalidated for that reason as well. Doc. #27, PAGEID
#341.? Specifically, Plaintiffs claim that “[a] bar to collective actions in arbitration would
permit employers an end[-run] around the FLSA requirements because individual
employees will be discouraged from initiating arbitration to recover, what most times is,
a nominal amount of damages.” /d., PAGEID #344. Plaintiffs note that the Sixth Circuit
has invalidated arbitration clauses that “conflict[] with the statute’s purpose of both
providing individual relief and generally deterring unlawful conduct through the

enforcement of its provisions[,]” Doc. #27, PAGEID #342 (quoting Floss, 211 F.3d at

? Plaintiff cites several cases in which Courts have invalidated provisions in arbitration agreements in
which the rights and remedies available were not as broad as they would be under the applicable federal
statute. Doc. #27, PAGEID #341 (citing Kristian v. Comcast Corp., 446 F.3d 25, 48 (1st Cir. 2006);
Booker v. Robert Half Int'l, Inc., 413 F.3d 77, 83 (D.C. Cir. 2005); Hadnot v. Bay, Ltd., 344 F.3d 474, 478
(5th Cir. 2003); Morrison, 317 F.3d at 670 (6th Cir. 2003); McCaskill v. SCI Mgmt. Corp., 285 F.3d 623,
626 (7th Cir. 2002)). Notably, however, none of those cases concerned the FLSA.

10


individually arbitrated, 9 U.S.C. § 2, and those claims are dismissed from this Complaint

with prejudice.

B. AEI does not bar Individual Arbitration of FLSA Claims, and a Stay is
not Necessary to Adjudicate the Motion to Compel

In the Motion to Compel, Defendant notes the recent decision in Nat’! Labor
Relations Bad. v. Alt. Enter., Inc. (‘AE’), in which the Sixth Circuit held that employee
waiver of their rights to bring claims on a class or collective-wide basis were illegal as to
claims that arise under the National Labor Relations Act of 1935 (“NLRA”). Doc. #19,
PAGEID #134 (citing 858 F.3d 393, 405 (6th Cir. 2017); 29 U.S.C. § 151 ef seq.).
Defendant argues that AE/ applies only as to such claims, id., and notes that, even
post-AEl/, District Courts within the Sixth Circuit have consistently upheld waivers on
collective actions for claims arising under the FLSA. /d., PAGEID #145 n.7 (citing Doe
#1 v. Déja vu Consulting, Inc., No. 3:17-cv-40, 2017 WL 3837730, at *12-13 (M.D.
Tenn. Sept. 1, 2017); Myers v. TRG Customer Sols., Inc., No. 1:17-cv-52, 2017 WL
3642295, at *3-5 (M.D. Tenn. Aug. 24, 2017)); Doc. #33, PAGEID #375-76 (citing Pyle
v. VXI Glob. Sols., Inc., No. 5:17-cv-220, 2017 WL 5132765, at *4 (N.D. Ohio Nov. 6,
2017)). Plaintiffs do not argue, in their memorandum in opposition, that the AE/ is
applicable to FLSA claims, Doc. #27, PAGEID #345-46, and the Court agrees that AE/
is inapposite, for two reasons. First, AE/ did not purport to overrule its holding in
Huffman that individual arbitration could be compelled in wage and hour claims. 747
F.3d at 398-99 (citing Reed Elsevier, Inc. ex rel. LexisNexis Div. v. Crockett, 734 F.3d
594, 599 (6th Cir. 2013). Indeed, AE/’s holding was expressly limited to NLRA claims.

858 F.3d at 408.


v. Circuit City Stores, Inc., 317 F.3d 646, 665 (6th Cir. 2003) (citing Floss v. Ryan’s
Family Steak Houses, Inc., 211 F.3d 306, 311 (6th Cir. 2000). “[A]n agreement in
writing to submit to arbitration an existing controversy arising out of such a contract,
transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.
“[T]he party resisting arbitration bears the burden of proving that the claims at issue are
unsuitable for arbitration.” Green Tree Fin. Corp.-Ala v. Randolph, 531 U.S. 79, 91, 121
S.Ct. 513, 148 L.Ed.2d 373 (2000). Nonetheless, “[i]n evaluating motions or petition[s]
to compel arbitration, courts treat the facts as they would in ruling on a summary
judgment motion, construing all facts and reasonable inferences that can be drawn
therefrom in a light most favorable to the non-moving party.” Raasch v. NCR Corp., 254

F. Supp. 2d 847, 851 (S.D. Ohio 2003) (Rice, C.J.).

Ill. ANALYSIS

A. Compulsory Arbitration of FLSA Claims, and Compulsory Individual
Arbitration of OMFWSA Claims, are Permissible

In their Motion to Compel, Defendants note that the Sixth Circuit recently held
that clauses in employment agreements that compel arbitration of FLSA and OMFWSA
claims should be upheld, and that individual arbitration of OMFWSA claims could be
compelled. Doc. #19, PAGEID #142 (citing Huffman v. Hilltop Cos., 747 F.3d 391, 398-
99 (6th Cir. 2014)). In their memorandum in opposition, Plaintiffs do not argue that
FLSA and OMFWSA claims may not be arbitrated, or that a waiver of the right to
participate in a class action for OMFWSA claims is invalid. Nor, in light of Huffman,

could Plaintiffs have reasonably so argued. Thus, Plaintiffs’ OMFWSA claims must be


Cc. Solutions and Resolution are Valid Agreements to Arbitrate Wage
Claims Individually

Plaintiffs argue that “a contract provision which precludes individuals from
pursuing collective actions under the FLSA is illegal and unenforceable in any forum,
including in arbitration.” Doc. #27, PAGEID #335 (emphasis in original). In support,
they note that illegality is a defense to enforcement of a contract, and that “employers
and employees are not permitted to contract around the rights guaranteed by the
FLSA.” /d., PAGEID #334-35 (emphasis removed) (citing E.E.0.C. v. Waffle House,
Inc., 534 U.S. 279, 294, 122 S. Ct. 754, 764, 151 L. Ed. 2d 755 (2002); Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625, 105 S.Ct. 3346, 87
L.Ed.2d 444 (1985)). Plaintiffs claim that the FLSA’s plain language, statutory history
and fundamental purpose demonstrate that the FLSA’s collective action mechanism is
one of the law's “essential, operative procedures[,]” and any attempted waiver of the
right to arbitrate collectively is illegal and should be invalidated. /d., PAGEID #340
(citing 29 U.S.C. § 216(b); Gilmer, 500 U.S. at 29; Mitsubishi, 473 U.S. at 628; Morris v.
Ernst & Young, LLP, 834 F.3d 975, 982, 985 (9th Cir. 2016)).

In support, Plaintiffs note that the Supreme Court stated that the enactment of
the FLSA was driven by Congressional recognition that it is axiomatic that employees
have less power individually vis-a-vis their respective employers, and that FLSA’s
statutory rights, although “conferred on a private party . . . affect[] the public interest,”
and thus “may not be waived or released if such waiver or release contravenes the
statutory policy.” Doc. #27, PAGEID #337 (emphasis removed) (quoting Brooklyn Sav.
Bank v. O'Neil, 324 U.S. 697, 704, 65 S.Ct. 895, 89 L.Ed. 1296 (1945)). Further, they

note that the United States Department of Labor has taken the position that certain


IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARY MASON, et al., on behalf of
themselves and others similarly

situated, .
Plaintiffs, "Case No. 3:17-cv-314
_ JUDGE WALTER H. RICE
v. ‘MAGISTRATE JUDGE MICHAEL
J. NEWMAN

SYNCHRONY BANK,
Defendant.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN
PART DEFENDANT SYNCHRONY BANK’S MOTION TO COMPEL
ARBITRATION AND TO DISMISS OR, IN THE ALTERNATIVE, TO STAY
PROCEEDINGS (DOC. #18), AND OVERRULING AS MOOT
PLAINTIFFS MARY MASON, YAHAIRA DIAZ-REYES AND KARETTA
PARTRIDGE’S MOTION FOR CONDITIONAL CERTIFICATION,
EXPEDITED OPT-IN DISCOVERY, AND COURT-SUPERVISED NOTICE
TO POTENTIAL OPT-IN PLAINTIFFS (DOC. #15); PLAINTIFFS’
COMPLAINT (DOC. #1) IS DISMISSED WITH PREJUDICE;
TERMINATION ENTRY

Plaintiffs, Mary Mason (“Mason”), Yahaira Diaz-Reyes (“Diaz-Reyes”) and
Karetta Partridge (“Partridge”) (collectively “Plaintiffs” or, when applicable, “named
Plaintiffs”), allege that Synchrony Bank (“Defendant” or “Synchrony’) failed to
compensate them for the time they spent performing required, but unpaid, “work before
clocking in each day, including, but not limited to, starting, booting up, and logging into

Defendant's computer systems, numerous software applications, and phone systems.”


addressed the question, and neither has the Supreme Court[,]” of whether individual
arbitration can be compelled. Nonetheless, the Court found it “safe to conclude that the
agreement to arbitrate in this case cannot be enforced to bar the plaintiffs from pursing
a collective action in any forum to resolve their unpaid overtime claims.” 203 F. Supp.
3d at 839-40. The Gaffers Court held that to bar collective resolution of wage and hour
claims would be an impermissible abrogation of employees’ rights under FLSA, which
an employer may not effect merely “by purporting to obtain the employee's contractual
consent to give up those rights.” /d. at 841 (citing Killion v. KeHE Distrib., LLC, 761
F.3d 574, 592 (6th Cir. 2014); Boaz v. FedEx Cust. Info. Servs., Inc., 725 F.3d 603, 607
(6th Cir. 2013)).

For two reasons, Plaintiffs’ reliance on Gaffers is misplaced. First, as Defendant
notes, the majority of District Courts within the Sixth Circuit that have examined the
issue have not followed Gaffers. Doc. #33, PAGEID #375-76 (citing Cronk v. TRG
Cust. Sols., Inc., No. 1:17-cv-59, 2017 WL 5517259, at *7 (M.D. Tenn. Nov. 17, 2017);
Myers v. TRG Cust. Sols., Inc., No. 1:17-cv-52, 2017 WL 5478398, at *8 (M.D. Tenn.
Nov. 15, 2017); Pyle, 2017 WL 5132765, at *4); see also McGrew v. VCG Holding
Corp., 244 F. Supp. 3d 580, 590 (W.D. Ky. 2017) (citing Walthour v. Chipio Windshield
Repair, LLC, 745 F.3d at 1334-35; Sutherland v. Ernst & Young LLP, 726 F.3d 290, 296
(2d Cir. 2013); Owen v. Bristol Care, Inc., 702 F.3d 1050, 1052 (8th Cir. 2013); Carter v.
Countrywide Credit Indus., Inc., 362 F.3d 294, 298 (5th Cir. 2004); Adkins v. Labor
Ready, Inc., 303 F.3d 496, 503 (4th Cir. 2002); Colley v. Scherzinger Corp., No. 1:15-
cv-720, 2016 WL 2998111 (S.D. Ohio May 25, 2016) (Beckwith, J.)) (concluding that,

Gaffers notwithstanding, “[t]he overwhelming weight of persuasive authority supports

12


313), and argue that the collective action waivers in Solutions and Resolution, therefore,
should be invalidated. /d., PAGEID #344-45.

Plaintiffs’ arguments are insufficient to meet their heavy burden of “show/ing] that
Congress intended to preclude a waiver of a [collective] judicial forum[.]” Gilmer, 500
U.S. at 26. Gilmer upheld compulsory arbitration of claims that otherwise would arise
under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et
seq., a law that expressly incorporated the FLSA’s collective action provision. Gilmer,
500 U.S. at 35; 29 U.S.C. § 626(b) (citing 29 U.S.C. § 216(b)). Notably, the Gilmer
Court rejected the argument that arbitration would prevent effective vindication of an
employee’s ADEA rights. Rather, the Court held that “arbitration is consistent with
Congress'[s] grant of concurrent jurisdiction over ADEA claims to state and federal
courts,” id. at 29 (citing 29 U.S.C. § 626(c)(1)), and that “arbitration agreements, like the
provision for concurrent jurisdiction, serve to advance the objective of allowing
claimants a broader right to select the forum for resolving disputes, whether it be judicial
or otherwise.” /d. (internal quotation marks and citation omitted). As FLSA claims may
also be brought “in any Federal or State Court of competent jurisdiction[,]” 29 U.S.C. §
216(b), Gilmer casts doubt on Plaintiffs’ argument that individual arbitration prevents
effective vindication of their rights under the FLSA.

Plaintiffs attempt to distinguish Gilmer by noting that the Supreme Court, in that
case, did not address an arbitration provision that required individual, as opposed to
permitting collective, arbitration of claims. They direct the Court to Gaffers v. Kelly
Servs., Inc., Doc. #27, PAGEID #342 (citing 203 F. Supp. 3d 829, 837-38 (E.D. Mich.

2016)), wherein the District Court conceded that “[t]he Sixth Circuit has not directly

11


Second, the Supreme Court recently stated that it had “no qualms in enforcing a
class waiver in an arbitration agreement even though the federal statute at issue, the
Age Discrimination in Employment Act [of 1967 (‘ADEA’)], expressly permitted collective
actions.” Am. Express Co. v. Ital. Colors Rest., 570 U.S. 228, 237, 133 S.Ct. 2304, 186
L.Ed.2d 417 (2013) (citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32,
111 S.Ct. 1647, 114 L.Ed.2d 26 (1981)). As discussed below, the ADEA expressly
incorporates the FLSA’s collective action provision. 29 U.S.C. § 626(b) (citing 29
U.S.C. § 216(b)). The Supreme Court’s dicta in Italian Colors, along with subsequent
Sixth Circuit decisions, compel the conclusion that AE/ has no bearing on this case.

In its Motion to Compel, Defendant asks that, if this Court were to find the AE/
holding controlling or persuasive as to Plaintiffs’ FLSA claims, the Court stay any
decision on whether to compel arbitration until the Supreme Court issues a decision in
the consolidated appeal of three cases’ as to the legality “of class/collective action
waivers in arbitration agreements as applied to employment claims.” Doc. #19,
PAGEID #134. However, all three cases (collectively “Epic Systems’) pertain to waivers
of claims arising under the NLRA. Thus, for the same reasons that AE/ is not binding
on this Court as to the waivers at issue in the instant case, the Supreme Court's ruling
in Epic Systems would have no impact on the enforceability of waivers in claims arising
under the FLSA. Accordingly, to the extent that Defendant's Motion to Compel seeks to

stay a ruling until the Supreme Court issues a decision in Epic Systems, it is overruled.

' Epic Sys. Corp. v. Lewis (No. 16- 285, appealed from Lewis v. Epic Systems Corp., 823 F.3d 1147 (7th
Cir. 2016)); Ernst & Young, LLP v. Morris (No. 16-300, appealed from Morris v. Ernst & Young, LLP, 834
F.3d 975 (9th Cir. 2016); and Nat’! Labor Relations Bd. v. Murphy Oil, USA, Inc. (No. 16-307, appealed
from Murphy Oil, USA, Inc. v. Nat'l Labor Relations Bd., 808 F.3d 1013 (5th Cir. 2015)).

8


employees and Defendant waived any right to resolve their claims as part of a class or
collective action. Doc. #19-2, § M, PAGEID #180; Doc. #19-3, 18, PAGEID #202.

In late 2015, in conjunction with its separation from General Electric Capital
Corporation, Defendant transitioned its ADR program away from Solutions to a new
program known as “Resolution.” Doc. #19-3, Jf 4-5, 8, PAGEID #199, 204.
“[E]mployees hired on or after September 1, 2015[,] agreed to Resolution at the time of,
and as a condition of, their hiring and employment. All other then-current employees of
Defendant became subject to Resolution effective December 1, 2015. Any then-former
employees not covered by Resolution remained bound by Solutions.” /d., 18. On or
about October 1, 2015, Marc Chini, Defendant’s Human Resources Leader (“Chini’),
informed all of its employees (including all named Plaintiffs) of the transition to
Resolution via an electronic mail message with the subject line “ACTION REQUIRED:
Synchrony Financial Alternative Dispute Resolutions Program[.]" /d., PAGEID #204.
Chini stated that Resolution would take effect on December 1, 2015, and asked
employees “to acknowledge that you are bound by the terms of Resolution by clicking
the voting button above at the top of this message*.” Id. (emphasis in original). Chini’s
email stated that as of December 1, 2015, “all employees receiving this letter will be
required to address claims through Resolution as individual claims. You may not

pursue them in court[,] and this is exactly the same as your current situation” under

Solutions. /d., PAGEID #205 (emphasis in original).
Neither Chini’s email nor the Resolutions program description, which was
hyperlinked in the email, Doc. #19-3, J 10, PAGEID #200, PAGEID #204, contained any

provision by which employees could elect not to participate in Resolution and remain


returned her signed acknowledgement to Defendant six days after the handbook was
sent. /d., ] 3(b), PAGEID #394-95 (citing Doc. #19-3, PAGEID #239-40). The
acknowledgment as to Solutions stated that “I agree as a condition of my employment,
to waive the right to pursue Covered Claims (as defined in the Solutions Procedure)
against the company in Court (bench or jury trial).” Doc. #19-3, 1 5, PAGEID #237
(emphasis added).

Moreover, all employees were informed of Resolution and its waiver of judicial
remedies at least sixty days prior to the program taking effect. Doc. #19-3, PAGEID
#204, Diaz-Reyes’s signed acknowledgement as to Resolution stated: “I agree[,] as a
condition of my employment, to waive the right to pursue Covered Claims (as defined in
Resolution) against the company in court (or on a class basis in court or arbitration).”
Doc. #27, PAGEID #348. Thus, all named Plaintiffs acknowledged that, as condition of
their employments, they were waiving their rights to avail themselves of the judicial
system. That some of the waivers did not contain the express phrase “jury trial” is
immaterial; the Sixth Circuit “has flatly rejected the claim that an arbitration agreement
must contain a provision expressly waiving the employee’s right to a jury trial.” Cooper
v. MRM Inv. Co., 367 F.3d 493, 506 (6th Cir. 2004) (quoting Burden v. Check Into Cash
of Kentucky, LLC, 267 F.3d 483, 492 (6th Cir. 2001) (“The loss of the right to a jury trial
is a necessary and fairly obvious consequence of an agreement to arbitrate.”).

Finally, as Defendant states in its reply memorandum, the length of the Solutions
and Resolution handbooks “is not a defense[;] nor is any claim that an employee did not
read or understand these documents[,]” Doc. #33, PAGEID #384; Plaintiffs cite no

caselaw supporting their argument that the length or complexity of the handbooks is

15


briefed, the parties entered into an agreement to toll the statute of limitations as to
Plaintiffs’ FLSA claims until February 7, 2018.

For the reasons set forth below, Defendant's Motion to Compel is OVERRULED
as to its request for a stay of proceedings, and SUSTAINED in all other respects.
Plaintiffs’ Motion for Conditional Certification is OVERRULED AS MOOT, and their

Complaint is DISMISSED WITH PREJUDICE.

L FACTUAL BACKGROUND

The named Plaintiffs were employed by Defendant at various times between
November 14, 2014, and August 7, 2017. Doc. #1, J] 16-18, PAGEID #3-4. At all
times, Plaintiffs allege, Defendant was subject to the FLSA and OMFWSA minimum
wage and overtime requirements, and Plaintiffs were non-exempt employees paid on an
hourly basis. /d., J] 10-13, 20-21, PAGEID #3, 4. Prior to beginning employment,
Defendant sent to Plaintiffs a set of employment policies, which Plaintiffs were required
to sign and return to Defendant as a condition of their employment. Doc. #33, PAGEID
#386 (citing Doc. #19-3, PAGEID #237-40; Doc. #33-1, 1] 3(a-b), 4, PAGEID #394-95).
One of the policies, prior to December 1, 2015, was Defendant's alternative dispute
resolution (“ADR”) program of binding arbitration, entitled “Solutions.” Doc. #19-3, 7,
PAGEID #199. Solutions required employees to submit all employment-related
disputes to arbitration, including wage and hour claims, and waiving any right that
employees or Defendant would have to litigate a claim in state or federal court. /Id., 15,
PAGEID #209. Further, Solutions required employees to arbitrate any employment-

related dispute on an individual basis, and contained an express provision by which


Doc. #1, | 22, PAGEID #4. Plaintiffs claim that Defendant’s refusal to pay Plaintiffs for
that pre-shift work resulted in Plaintiffs not being paid for all hours worked or for
overtime compensation “for all of the hours they worked over 40 [during] each
workweek{,]” id., ] 32, PAGEID #5, in violation of the Fair Labor Standards Act of 1938
(“FLSA”), 29 U.S.C. § 201 et seq., and the Ohio Minimum Wage Fair Standards Act
(‘OMFWSA’), Ohio Rev. Code § 4111.01 et seq. /d., 1] 48-58, PAGEID #8-10. On
October 30, 2017, Plaintiffs filed a Motion for Conditional Certification, Expedited Opt-In
Discovery, and Court-Supervised Notice to Potential Opt-In Plaintiffs (“Motion for
Conditional Certification”), asking the Court to certify conditionally a collective action as
to Plaintiffs’ FLSA claims. Doc. #15, PAGEID #67.

On November 8, 2017, Defendant filed a Motion for Postponement of Briefing on
Plaintiffs’ Motion for Conditional Certification (“Motion for Postponement”), declaring its
intention to file a Motion to Compel Individual Arbitration and Dismiss or, in the
Alternative, to Stay the Proceedings (“Motion to Compel”). Doc. #16, 6, PAGEID
#120-21. Defendant argued that its Motion to Compel would raise a threshold issue of
whether this Court has jurisdiction to hear Plaintiffs’ claims, individually or on a
collective or class-wide. /d., 7, PAGEID #121. Defendant filed its Motion to Compel
the next day. Doc. #18. As part of a telephonic status conference on December 15;
2017, the Court orally sustained the Motion for Postponement, concluding that the
Motion to Compel required the Court to determine—at the outset—whether the
arbitration agreements are enforceable and, thus, deprive this Court of jurisdiction to

hear Plaintiffs’ claims. On December 18, 2017, after the Motion to Compel was fully


the Court's conclusion” that FLSA collective action waivers as part of arbitration
agreements are valid and enforceable).

Second, the Court concludes that Gaffers misapplied the Sixth Circuit precedent
upon which it purports to rely. In neither Killion nor Boaz was an arbitration agreement
at issue, and the Court in Killion expressly distinguished other appellate caselaw for that
reason. 764 F.3d at 592 (emphasis added) (citing Walthour, 745 F.3d at 1331;
Sutherland, 726 F.3d at 296; Carter, 362 F.3d at 298; Adkins, 303 F.3d at 502)
(“Crucially, however, the respective waiver agreements in all of the above-cited cases
included provisions subjecting the employees to arbitration.”). Further, the Killion Court
stated that Supreme Court and appellate court decisions constitute an “emerging
consensus’ as to the validity of class and collective-action waivers in arbitration
agreements, but “do not speak to the validity of a collective-action waiver outside of the
arbitration context.” /d. (emphasis added) (citing /talian Colors, 570 U.S. at 233; Gilmer,
500 U.S. at 35; Walthour, 745 F.3d at 1331; Sutherland, 726 F.3d at 296; Carter, 362
F.3d at 298; Adkins, 303 F.3d at 502). In so stating, the Sixth Circuit implied that it
would be compelled to find a collective action waiver legal within the arbitration context,
and this Court finds that, in light of the dicta in Killion and the majority of decisions within

and outside the Sixth Circuit, such a finding is compelled.

D. No Other Ground is Sufficient to Avoid Enforcement

As Defendants note, Plaintiffs do not argue that duress, unconscionability, or any
other equitable principle should operate to invalidate the collective action waivers. Doc.
#33, PAGEID #373. However, in the alternative to the waivers being found invalid for

illegality, Plaintiffs argue that the waiver clauses were so ambiguous, confusing and

13


sufficient to render their waivers involuntary. Accordingly, the FLSA claims of all named
and opt-in Plaintiffs must be arbitrated individually under the procedures set forth in
Solutions or Resolution. See Doc. #19-3, J 11, PAGEID #200-01 n.1; Doc. #33-1, 5,
PAGEID #395 (undisputed facts showing that all named Plaintiffs and opt-in Plaintiffs

were bound by Solutions or Resolution).

IV. CONCLUSION

For the foregoing reasons, Defendant's Motion to Compel Arbitration and to
Dismiss, or Alternatively, to Stay the Proceedings, Doc. #18, is OVERRULED as to its
request to stay proceedings, and SUSTAINED in all other respects. Plaintiffs’
Complaint, Doc. #1, is DISMISSED WITH PREJUDICE, and their Motion for Conditional

Certification, Doc. #15, is OVERRULED AS MOOT.

The captioned case is hereby ordered terminated upon the docket records of the
United States District Court for the Southern District of Ohio, Western Division, at

Dayton.

Date: January 22, 2018 Cn

WALTER H. RICE
UNITED STATES DISTRICT JUDGE

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