SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 20 OBADIAH SALTERS, Plaintiff

- Appellant,

v. BRINKER INTERNATIONAL, INC. d/b/a CHILI'S GRILL & BAR , BRINKER NEW JERSEY, INC. d/b/a CHILI'S GRILL & BAR , BRINKER RESTAURANT CORPORATION d/b/a CHILI'S GRILL & BAR , LEONEL RAMIREZ, both individually and in his managerial and/or su pervisory capacity, Defendants

- Respondents.

______________________________

Submitted December 15, 2021

– Decided March 1 1 , 2022 Before Judges Gilson, Gooden Brown, and Gummer. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L

- 6543

- 20.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited

. R

. 1:36

- 3.2 A

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- 20 O'Connor, P arsons, Lane & Noble, LLC, attorneys for appellant (Gregory B. Noble, of counsel and on the briefs; R. Daniel Bause, on the briefs). Jackson Lewis, P C , attorneys for respondents (Ronald V. Sgambati and Amanda E. Miller, of counsel and on the brief).
PER CURIAM This appeal presents the question of whether N.J.S.A. 10:5

- 12.7 (Section 12.7) of New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5

- 1 to

- 50 , is preempted when applied to an arbitration agreement gover ned by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16

. We hold that Section 12.7 is preempted. Plaintiff appeals from a March 30, 202 1 order compelling arbitration of his LAD claims and dismissing his complaint with out prejudice. We affirm the
p ortion of the order that compelled the claims to arbitration. We vacate the portion of the order that dismissed the complaint and remand for entry of a new order that stays the Law Division action pending arbitration as required by

s ection 3 of the FAA. 9 U.S.C. § 3.
I. The material facts concerning the agreement to arbitrate are indisputable and established in the record. On March 1 6 , 2019, plaintiff Obadiah Salters3 A

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applied to work at a Chili's Grill & Bar restaurant in New Jersey. Chili's' corporate name is Brinker International Payroll Company, L.P. (Brinker). As part of the application process, plaintiff was given an arbitration agreement and he agreed to arbitrat e all disputes as a condition of being considered for employment. On March 18, 2019, plaintiff acknowledged receiving Brinker's policies and procedur es manual, which included the arbitration agreement. That same day, he electronically signed an acknowledgment that he had read and agreed to the arbitration agreement. The arbitration agree ment stated that plaintiff and Brinker agreed to arbitrate all disputes, including employment disputes, under the employment arbitration rules of the American Arbitration Association (AAA). The agreement explained that the disputes subject to arbitration included s tate "anti

discrimination" laws. In addition, the agreement explained that the decision of the arbitrator would be "final and binding" and that "[m]atters covered by this Agreement are subject to arbitration, not a court or jury trial." The agr eement also stated that it was governed by the FAA

. In that regard, the arbitration agreement stated, in relevant part: Brinker and you agree to arbitrate all disputes (except for those listed in the next section) involving legal or equitable rights, whic h Brinker may have against you or you may have against Brinker, its affiliates,4 A

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- 20 subsidiaries, divisions, predecessors, successors, assigns and their current and former employees, officers, directors, and agents, arising out of or in any manner relat ed to t he employment relationship. . .

. S uch claims include, but are not limited to, those under . . . any state or local anti

- discrimination, harassment, or wage laws . . . or any other federal, state, or local law, ordinance or regulation . . . . Matters cove red by this Agreement are subject to arbitration, not a court or jury trial. [ 1 ]

. . . . All orders of the arbitrato r ( except evidentiary rulings at the arbitration ) will be in writing and subject to review pursuant to the Federal Arbitration Act ("FAA"). You and Brinker agree that the FAA shall govern this Agreement.

. . . . By signing below, [you] affirm that [you] have read the above Mutual Agreement to Arbitrat e and agree to resolve all matters covered by the Agreement through formal, mandatory arbitration as outlined above. On April 20, 2019, plaintiff began working for Brinker as a cook at a Chili's restaurant in Secaucus, New Jersey. Approximately a year and a half later, on October 1, 2020, plaintiff filed a lawsuit in the Law Division against

1 The arbitration agreement identified five types of claims not subject to arbitration. Those included claims for workers' compensation, unemployment compensation, stock

- option plans, claims exempt from arbitration under federal law, or claims already pend ing. Those exclusions did not include claims under LAD.5 A

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Brinker and a manager at the restaurant where he worked. In his complaint, plaintiff asserte d claims under LAD , including claims of a hostile work environment, racial discrimination, retaliation, and aiding and abetting. In lieu of an answer, defendants moved to dismiss plaintiff's complaint and compel arbitration. After hearing oral argument, on March 3 0 , 202 1 , the trial court entered an order and issued a written decision compelling arbitration of all of plaintiff's claims against defendant s and dismissing the complaint without prejudice. The trial court found that plaintiff had agreed to the arbitration agreement, the agreement was valid and enforceable, and the agreement covered all of plaintiff's claims in his complaint. The court also held that Section 12.7 of LAD was preempted by the FAA as applied to the arbitration agreement between
Br inker and plaintiff. Plaintiff now appeals from the order compelling arbitration and dismissing his complaint.
II. On appeal, plaintiff makes two arguments, contending (1) the Arbitration Agreement was not valid because it did not sufficiently explain th at he was waving his right to go to court and have a jury trial; and (2) Section 12.7 of LAD makes the Arbitration Agreement invalid as against public policy. We reject6 A

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both these arguments. Plaintiff also contends he is entitled to reasonable attorney's fees and costs incurred in opposing defendant's motion and on this appeal. Because we reject plaintiff's other argument s , he is not entitled to fees and costs.
1. The Enforceability of the Arbitration Agreement. The interpretation of an arbitration agre ement and its enforceability are questions of law that we review de novo. Goffe v. Foulk e Mgmt. Corp. , 238 N.J. 191, 207 (2019); Atalese v. U.S. Legal Servs. Grp., L.P. , 219 N.J. 430, 445

- 46 (2014) . Moreover, it is undisputed that plaintiff was given a c opy of the

a rbitration a greement and had an opportunity to review it. Consequently, we also review on a de novo basis the question of whether plaintiff agreed to arbitrate because that issue involves the application of established facts to the legal quest ion of what constitutes assent to a contract. Skuse v . Pfizer, Inc. , 244 N.J. 30, 50 (2020). Under both the FAA and New Jersey law, a rbitration is fundamentally a matter of contract. Rent

- A

- Center, W., Inc. v. Jackson , 561 U.S. 63, 67 (2010) ; 9 U.S.C. § 2; NAACP of Camden C n ty. E. v. Foulke Mgmt. Corp. , 421 N.J. Super. 404, 424 (App. Div. 2011). The FAA "places arbitration agreements on an equal footing with other contracts." Rent

- A

- Center , 561 U.S. at 67.7 A

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Accordingly, "t he FAA 'permits stat es to regulate

. . . arbitration agreements under general contract principles,' and a court may invalidate an arbitration clause 'upon such grounds as exist at law or in equity for the revocation of any
contract. ' " Atalese , 219 N.J. at 441 (quoting Martin dale v. Sandvik, Inc. , 173
N.J. 76, 85 (2002) ).

" A n agreement to arbitrate, like any other contract, 'must be the product of mutual assent, as determined under customary principles of contract law.'" Id. at 442 ( quoting NAACP , 421 N.J. Super. at 424). "A legally enforceable agreement requires 'a meeting of the minds.'" I bi d. (quoting Morton v. 4 Orchard Lan d T r . , 180 N.J. 118, 120 (2004)). Consequently, to be enforceable, the terms of an arbitration agreement must be clear, and any legal rights being waived must be identified. Id. at 442

- 43; s ee also Kernahan v. Home Warranty Adm ' r of Florida , Inc. , 236 N.J. 301 , 319

- 20 (2019). To accomplish a waiver of rights, "[n]o magical language is required." Morgan v. Sanford Brown Inst. , 225 N.J. 289, 309 (2016). Instead, "[o]ur courts have upheld arbitration clauses that have explained in various simple ways 'that arbitration is a waive r of the right to bring suit in a judicial forum.'" Ibid. (quoting Atalese , 219 N.J. at 444). Accordingly, in employment settings, "a waiver

- of

- rights provision must reflect that an employee has agreed clearly and8 A

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unambiguously to arbitrate the disputed claim." Leodori v. Cigna Corp. , 175 N.J. 293, 302 (2003). The New Jersey Supreme Court addressed the enforceability of a similar employment

- arbitration agreement in Skuse v. Pfizer, Inc. , 244 N.J. 30 (2020). There, Pfizer sent its agreement to the emp loyee by email. Id. at 53

- 54. The agreement informed the employee that by continuing to be employed for sixty days, she would waive her right to pursue employment

- discrimination claims against Pfizer in court. Id. at 50. In addition, Pfizer explained t he agreement through an online "training module," and provided a link to a frequently asked questions (FAQs) document. Id. at 37. Finally, Pfizer requested employees to click a box to electronically "acknowledge" the agreement. Id. at 60

- 61. In holdin g that Pfizer's arbitration agreement was valid, the Court made it clear that an arbitration agreement can be sent to employees by electronic means, such as email. Id. at 49

- 50. Moreover, if an employer's communications unambiguously explain that continu ed employment will be deemed assent to the agreement, then the employee will be considered to have consented to the agreement's terms. Id. at 50

- 52. Under those circumstances, continued employment constitutes valid consideration. Id. at 50; see also Mar tindale , 1739 A

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N.J. at 88 (explaining that "continued employment has been found to constitute sufficient consideration to support certain employment

- related agreements"). The a rbitration a greement provided to and reviewed by plaintiff is valid and enforceab le. The terms of the a greement were clear in stating that the parties were agreeing to arbitrate all employment

- related claims before an AAA arbitrator. In that regard, the a rbitration a greement expressly stated that it covered discrimination claims, including statutory claims. The a rbitration

a greement was also the product of mutual assent. Plaintiff was sent a copy of the a rbitration a greement. Thereafter, he acknowledged that he rev iewed and agreed to the a greement. Consequently, we hold that the a rbitration a greement is a valid and enforceable agreement. 2
2. Pre

- emption Under the FAA. Effective March 18, 2019, the Legislature amended LAD to add several sections, including Sectio n 12.7, which states that "[a] provision in any employment contract that waives any substantive or procedural right or remedy

2 Plaintiff does not argue that his claims fall outside the ambit of the a rbitration a greement. Although we agree with the trial court that the a rbitration a greement covered all claims asserted in plaintiff's complaint, the a greement delegated to the arbitrator any question concerning the scope of the a greement. Delegations of the scope of an arbitration agreement are enforceable under the FAA. Henry Schein, Inc. v. Archer & White Sales, Inc. , 586 U.S.

___ , 139 S. Ct. 524, 529

- 30 (2019).10 A

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relating to a claim of discrimination, retaliation, or harassment shall be deemed against public policy and unenforceable." N.J.S .A. 10:5

- 12.7(a) (codifying L. 2019, c. 39, § 1(a)). Section 12.7 also provides that no right or remedy under LAD "or any other statute or case law shall be prospectively waived." N.J.S.A 10:5

- 12.7(b). The 2019 amendments to LAD apply prospectively. L

. 2019, c. 39, § 6. In that regard, the amend ment states: "This act shall take effect immediately and shall apply to all contracts and agreements entered into, renewed, modified, or amended on or after the effective date." Plaintiff agreed to the a rbitr ation

a greement in March 2019. The a greement became effective when he bega n work ing for Brinker in April 2019. Accordingly, Section 12.7 of LAD would apply to the a rbitration a greement between plaintiff and Brinker unless it is pre

empted by the FAA

. Th at issue is a question of law that we review de novo.
See Skuse , 244 N.J. at 46; Kernahan , 236 N.J. at 316. We have recently addressed th at issue in a published opinion and held that that Section 12.7 is pre

- empted when applied to an arbitration agreement governed by the FAA. See Antonucci v. Curvature Newco, Inc. , ___ N.J. Super. ___, ___ (App. Div. 2022) (slip op. at 6). For the reasons s et forth in Antonucci ,11 A

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we hold that Section 12.7 is pre

- empted and cannot be appl ied to the arbitration agreement between plaintiff and Brinker. Plaintiff also makes arguments concerning the cases the trial court relied on and t he right to attorneys' fee s on the motion and this appeal. We reject those argument s and find that they lack sufficient merit to warrant a discussion in a written opinion. See R. 2:11

- 3(e ) (1)(E)

. Applying our ruling to the order on appeal, we affirm the provision of the order com pelling arbitration. We reverse the provision of the order dismissing the case without prejudice. See 9 U.S.C. § 3 (stating a court action should be stayed if the action involves "any issue referable to arbitration"). Therefore, we remand for entry of a new order and direct that the new order compel arbitration and stay this civil action pending the arbitration. Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.