NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5259-13T2

PAUL JAWORSKI, ALEXANDER

HAGGIS and ROBERT HOLEWINSKI,

Plaintiffs-Appellants,

v.

ERNST & YOUNG US LLP, TRACEY

GUNTER and RICHARD BAKER,

Defendants-Respondents.

_________________________________________

Argued February 23, 2015 – Decided

Before Judges Lihotz, Espinosa and St. John.

On appeal from Superior Court of New Jersey, 

Law Division, Hudson County, Docket No. L5223-13.

Christopher P. Lenzo argued the cause for 

appellants (Lenzo & Reis, LLC, attorneys; 

Mr. Lenzo, of counsel and on the briefs).

Robert T. Szyba (Seyfarth Shaw LLP) argued 

the cause for respondents (Mr. Szyba and

Loren Gesinsky (Seyfarth Shaw LLP), of the 

New York bar, admitted pro hac vice,

attorneys; Mr. Szyba and Mr. Gesinsky, on 

the brief).

The opinion of the court was delivered by

ST. JOHN, J.A.D.

Plaintiffs Paul Jaworski, Alexander Haggis and Robert 

Holewinski appeal from the trial court's order compelling 

APPROVED FOR PUBLICATION

July 23, 2015

APPELLATE DIVISION

July 23, 2015
2 A-5259-13T2

arbitration of their age-discrimination suit against defendants 

Ernst & Young US LLP (EY) and two of its executives, Tracey 

Gunter and Richard Baker. Plaintiffs challenge the 

enforceability of EY's mandatory arbitration policy on 

constitutional, statutory and common law grounds. The employees 

were provided notice of changes to the arbitration policy by 

electronic distribution. We must determine whether, if the 

policy states assent is given by continued employment, remaining 

employed with the company evinces an unmistakable indication 

that the employee affirmatively has agreed to arbitrate his 

claims pursuant to the changed policy. Having reviewed the 

arguments advanced in light of the record and governing law, we 

affirm.

I.

The record discloses the following facts and procedural 

history. Plaintiffs are former employees of EY's Secaucus 

office whose employment was terminated in August 2012. Jaworski 

worked for EY for thirteen years and was a Finance Director in 

the Global Finance Group before his employment was terminated at 

the age of sixty-one. Haggis was fifty-seven years old when EY 

terminated his employment after seventeen years, at which time 

he was a Manager of Accounting. Holewinski worked at EY for 

over eleven years before he was fired, at age fifty-five, while 
3 A-5259-13T2

working as an Associate Director of Finance in the Global 

Infrastructure Group.

In August 2002, EY initiated the Common Ground Program (the 

Program), a set of mandatory alternative dispute resolution 

(ADR) procedures for its employees. The Program provided in 

pertinent part:

All claims, controversies, or other disputes 

between [EY] and an Employee that could 

otherwise be resolved by a court, [subject 

to limited exceptions enumerated within] 

("Covered Disputes"), shall be resolved 

through the Program, and both [EY] and the 

Employee expressly waive any right to 

resolve any Covered Dispute through any 

other means. Neither [EY] nor an Employee 

will be able to sue in court in connection 

with a Covered Dispute.

[(Emphasis added).]

As a non-exhaustive list of examples of Covered Disputes 

within the Program's ambit, EY provided: (1) "[c]laims based on 

federal statutes" including civil rights and anti-discrimination 

laws; (2) "[c]laims based on state statutes and local ordinances 

including state and local anti-discrimination laws"; (3) 

"[c]laims based on common law theories such as tort and 

contract"; (4) "[c]laims concerning wages, salary and incentive 

compensation programs" subject to limited exceptions; and (5) 

"[c]laims concerning application, interpretation and enforcement 

of the Program." The provision further emphasized that "[a]ll 
4 A-5259-13T2

Covered Disputes, whether or not listed here, must be resolved 

through the Program."

In the event of a Covered Dispute, the Program first 

required "the parties . . . try to resolve the [dispute] through 

mediation" provided by the CPR Institute for Dispute Resolution 

(CPR). Should a dispute remain unresolved following mediation, 

either party was then able to proceed with binding arbitration, 

also through CPR. Any dispute for $250,000 or less was to be

decided by one arbitrator, whereas any controversy involving 

more than $250,000, "or if the party initiating [arbitration] so 

chooses," went before a three-arbitrator panel. As to 

discovery, the program limited each party to one deposition prehearing, unless the arbitrator(s) found "the party seeking the 

[additional] discovery ha[d] a substantial need for it and . . .

the discovery sought [was] consistent with the expedited nature 

of arbitration and not unduly burdensome." 

In addition to requiring the initiating party to pay any 

filing fees as well as the party's own attorney's fees, the 

Program provided:

The parties' intent is for the cost of the 

arbitration (including administration and 

arbitrator fees) to be shared equally to the 

extent permitted by law. However, the 

portion of the cost to be paid by an 

Employee shall be adjusted to the extent, if 

any, necessary for the parties' agreement to 
5 A-5259-13T2

arbitrate to be enforced in accordance with 

applicable law.

Finally, the ADR policy included a provision on Termination 

or Amendment of the Program:

[EY] may propose termination or amendment of 

the program at any time by providing notice 

to Employees through the Daily Connection 

[daily email bulletin] or other electronic 

notice. An Employee indicates his or her 

agreement to the proposed amendment or 

termination, and such proposed changes 

become effective as to that Employee, by

continuing his or her employment with [EY] 

for at least three days after the notice is 

provided. Termination or amendment shall 

not affect a Covered Dispute as to which 

[mediation] has already been initiated.

[(Emphasis added).]

On July 29, 2002, EY announced the implementation of the 

Program to all United States (U.S.) personnel, including 

plaintiffs, via its Daily Connection email bulletin. The July 

29 message provided a brief synopsis of the Program and directed 

the reader to two links, one leading to the policy's provisions 

in their entirety in EY's employee manual and the other to an 

article about the Program. 

On March 23, 2006, EY announced revisions to the Program 

through a Daily Connection message to all U.S. employees, 

including plaintiffs. The three main changes, as identified in 

the email, were: (1) "Employees now have a choice of three ADR 

providers" — CPR, the American Arbitration Association (AAA) and 
6 A-5259-13T2

JAMS; (2) "[e]xcept for a fee equal to what it would have cost 

the employee to sue in court, the firm will pay the entire cost 

of mediation (not including any attorney's fees)"; and (3) 

"[d]isputes up to $1 million will be heard by a single 

arbitrator, rather than by a three-arbitrator panel." 

The amendments also clarified certain important provisions 

through highlighting and italicization, unlike the 2002 version. 

For instance, under the 2006 Program, "[n]either [EY] nor an 

employee will be able to sue in court in connection with a 

Covered Dispute." "All Covered Disputes . . . must be resolved 

through the Program." Further, "[a]n Employee indicates his or 

her agreement to the Program and is bound by its terms and 

conditions by beginning or continuing employment with [EY] after 

May 1, 2006 (the 'Effective Date')." 

The 2006 amendments provided for expanded discovery, 

including a party's right to depose three individuals prior to 

any arbitration hearing. As to arbitration fees: 

1. Filing and administrative fees. [EY] 

will pay all filing and administrative fees 

in connection with the arbitration, except 

as follows:

a. An Employee starting 

[arbitration] shall contribute the 

Court Equivalent Fee or the 

Employee's fee specified in the 

Arbitration Rules, whichever is 

less. An Employee who has paid 

the Court Equivalent Fee in 
7 A-5259-13T2

[mediation] need not contribute 

when initiating [arbitration].

. . . .

2. Arbitrator fees and other costs. The 

parties' intent is for the Arbitrator fees 

and other costs of the arbitration, other 

than filing and administrative fees, to be 

shared equally to the extent permitted by 

law and the Arbitration Rules. However, the 

portion of the cost to be paid by an 

Employee will be adjusted to the extent, if 

any, necessary for the parties' agreement to 

arbitrate to be enforced.

Finally, the 2006 policy amended the "Termination or 

Amendment" clause, so that:

[EY] may propose termination or amendment of 

the Program by providing notice to Employees 

through the Daily Connection or other 

electronic notice on at least two occasions. 

An Employee indicates his or her agreement 

to the proposed amendment or termination, 

and such proposed change becomes effective 

as to that Employee, by continuing his or 

her employment with [EY] for at least thirty 

days after the second notice is provided.

[(Emphasis added).]

However, as in the original policy, "[t]ermination or amendment 

will not affect a Covered Dispute as to which [mediation] had 

been initiated when the termination or amendment was proposed." 

On April 25, 2006, EY sent the revised terms to all U.S.

personnel via email. EY's records reflect that plaintiffs 

received the April 25 email. 
8 A-5259-13T2

On June 18, 2007, EY distributed another revised version of 

the Program via email to U.S. personnel, including plaintiffs. 

As with the previous iterations of the Program, an employee 

indicates agreement with its provisions by continuing employment 

with EY after the "Effective Date," in this case July 18, 2007. 

The main substantive difference between the 2006 and the 2007 

versions is that under the latter an employee may only choose 

between AAA and JAMS, not CPR, for purposes of mediation and 

arbitration.

On August 3, 2007, Jaworski signed an EY Employment 

Agreement acknowledging and assenting to the terms of the 

Program. The last paragraph of the agreement states: 

I HAVE READ THIS AGREEMENT AND ATTACHMENT 

AND FULLY UNDERSTAND THEIR TERMS. I 

ACKNOWLEDGE THAT I HAVE AGREED TO WAIVE ANY 

RIGHT I MAY HAVE TO HAVE A DISPUTE BETWEEN 

MYSELF AND [EY] DETERMINED BY A COURT OF LAW 

AND THAT ALL SUCH DISPUTES SHALL BE RESOLVED 

THROUGH MEDIATION AND ARBITRATION.

On January 27, 2010, Haggis signed a similar contract agreeing

to arbitration of any Covered Disputes. Holewinski, however, 

signed his Employment Agreement on May 19, 2004, but did not 

sign a new agreement after either the 2006 or 2007 amendments to 

the Program became effective. Nevertheless, Holewinski, Haggis 

and Jaworski all continued their employment with EY after July 

18, 2007.
9 A-5259-13T2

Subsequent to their termination, plaintiffs filed the 

instant suit in the Law Division. In lieu of an answer, 

defendants moved to dismiss and compel arbitration, which 

plaintiffs opposed. The judge denied defendants' motion, 

concluding, although plaintiffs' claims fell within the meaning 

of Covered Disputes under the Program, because the record was 

"devoid of any indication that . . . plaintiffs signed any 

paperwork regarding the arbitration agreement," the Program was 

unenforceable as applied to them.1 Defendants moved for 

reconsideration and, in support of their motion, attached copies 

of the three agreements signed by plaintiffs individually. 

Thereafter, the trial court granted defendants' motion for 

reconsideration and dismissed plaintiffs' claims without 

prejudice in favor of arbitration.

This appeal ensued. 

II.

We begin by noting the applicable legal principles that 

guide our analysis. Orders compelling or denying arbitration 

are deemed final and appealable as of right. See R. 2:2-3(a); 

Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013). We 

exercise plenary review of the trial court's decision regarding 

 

1 The signed employment agreements referenced above were not 

included with defendants' initial filing.
10 A-5259-13T2

the applicability and scope of an arbitration agreement. See

Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 446 

(2014), cert. denied, 83 U.S.L.W. 3888 (U.S. June 8, 2015). 

Similarly, the issue of whether parties have agreed to arbitrate 

is a question of law that is reviewed de novo. See Hirsch, 

supra, 215 N.J. at 186; see also Manalapan Realty, L.P. v. Twp. 

Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's 

interpretation of the law and the legal consequences that flow 

from established facts are not entitled to any special 

deference."). Nevertheless, "[i]n reviewing such orders, we are 

mindful of the strong preference to enforce arbitration 

agreements, both at the state and federal level." Hirsch, 

supra, 215 N.J. at 186. 

A.

We first must determine which iteration of the Program 

controls as to each plaintiff's employment relationship with EY. 

Jaworski and Haggis signed employment agreements on August 3, 

2007, and January 27, 2010, respectively. These agreements 

unambiguously referenced and assented to the terms of the 

Program, including the 2007 amendments, particularly with 

regards to "WAIV[ING] ANY RIGHT [THE EMPLOYEE] MAY HAVE TO HAVE 

A DISPUTE BETWEEN MYSELF AND [EY] DETERMINED BY A COURT OF LAW." 

Jaworski's and Haggis' signatures constituted "explicit, 
11 A-5259-13T2

affirmative agreement[s] that unmistakably reflect[ed] the 

employee[s'] assent" to be bound by the 2007 amendments to the 

Program and arbitrate any employment-related disputes in lieu of 

proceeding in court. See Leodori v. Cigna Corp., 175 N.J. 293, 

303, cert. denied, 540 U.S. 938, 124 S. Ct. 74, 157 L. Ed. 2d 

250 (2003). Therefore, there can be no dispute they are each 

bound by its terms as in force as of each party's termination 

date. 

However, Holewinski signed his employment agreement with EY 

in 2004, subsequent to the initial enactment of the Program in 

2002, but before the later amendments. Relying on Leodori, he 

argues he cannot be forced to arbitrate under the policy in 

effect as of his termination date, because he never explicitly 

indicated his agreement thereto. Any attempt to compel 

arbitration, Holewinski submits, must be done under the original 

2002 Program.2 We disagree.

In Leodori, the Court declined to enforce an employment 

agreement's arbitration provision where there was no evidence 

the plaintiff-employee assented to the agreement's terms through 

his signature, and where there was no "other unmistakable 

 

2 Holewinski goes on to challenge the 2002 Program as 

unenforceable on other grounds, specifically, for failing to 

provide for a neutral arbitration forum. For the reasons that 

follow, we need not address this argument, which is limited 

solely to the Program in its original form. 
12 A-5259-13T2

indication that the employee affirmatively had agreed to 

arbitrate his claims." Leodori, supra, 175 N.J. at 306-07. 

However, in reaching its decision, the Court clarified, "'[t]o 

enforce a waiver-of-rights provision in this setting, the Court 

requires some concrete manifestation of the employee's intent as 

reflected in the text of the agreement itself.'" Id. at 300 

(alteration in original) (emphasis added) (quoting Garfinkel v. 

Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 

135 (2001)).

Here, unlike Leodori, where the employer's "own documents 

contemplated [the employee]'s signature as a concrete 

manifestation of his assent," id. at 306, EY's ADR policy 

provided: "An Employee indicates his or her agreement to the 

Program and is bound by its terms and conditions by beginning or 

continuing employment with [EY] after July 18, 2007 (the 

'Effective Date')." Not only did Holewinski continue with EY 

after the Effective Date, thus manifesting his intent to be 

bound pursuant to the unambiguous and specifically-emphasized 

terms of the Program, he did so for an additional five years 

until his termination in 2012. See Martindale v. Sandvik, Inc., 

173 N.J. 76, 88-89 (2002) ("[I]n New Jersey, continued 

employment has been found to constitute sufficient consideration 

to support certain employment-related agreements." (citing 
13 A-5259-13T2

Quigley v. KPMG Peat Marwick, LLP, 330 N.J. Super. 252, 265 

(App. Div.), certif. denied, 165 N.J. 527 (2000); Hogan v. 

Bergen Brunswig Corp., 153 N.J. Super. 37, 43 (App. Div. 

1977))).

3 

Therefore, consistent with Leodori, we conclude Holewinski,

Jaworski and Haggis are bound by the Program in its iteration as 

of the date of their termination.

B.

Plaintiffs challenge EY's mandatory ADR policy as 

unenforceable on several grounds. Specifically, they aver: (1) 

the Program constitutes an illusory agreement because EY retains 

the right to unilaterally modify its terms; (2) plaintiffs never 

agreed to arbitrate claims relating to the termination of their 

employment; (3) the Program is not a valid waiver of plaintiffs' 

constitutional and statutory rights to a jury trial; and (4) the 

Program is unconscionable since it imposes substantial forum 

 

3 Moreover, although plaintiffs do not challenge the adequacy 

of the email notice of changes to the Program, we agree with 

those courts that have held "an e-mail, properly couched, can be 

an appropriate medium for forming an arbitration agreement." 

Campbell v. Gen. Dynamics Gov't Sys. Corp., 407 F.3d 546, 555-56 

(1st Cir. 2005) ("[W]e easily can envision circumstances in 

which a straightforward e-mail, explicitly delineating an 

arbitration agreement, would be appropriate."). EY's June 18, 

2007 email to employees contained the Program's terms in their 

entirety, with special emphasis on those portions affecting 

employees' rights. 
14 A-5259-13T2

costs on plaintiffs they would not incur if proceeding in a 

court of law. We address each argument seriatim.

Plaintiffs first argue the Program constitutes an illusory 

promise because, given EY's right to modify or terminate, it 

impermissibly reserves the decision whether to resolve a 

particular employment-related dispute through mediation and 

arbitration to EY's sole discretion.4 Moreover, they contend the 

notice provision concerning when and how any amendments to EY's 

ADR policy take effect is functionally meaningless, because an 

employee has no means of rejecting a proposed amendment short of 

quitting his or her job. 

As a general matter, both the Federal Arbitration Act 

(FAA), 9 U.S.C.A. §§ 1-16, and the New Jersey Arbitration Act 

(NJAA), N.J.S.A. 2A:23B-1 to -32, promote federal and state 

 

4 Plaintiffs concede there is no controlling New Jersey 

precedent supporting this proposition, but rely upon a litany of 

decisions from other jurisdictions to contend EY's "unilateral 

reservation of the right to modify or terminate" the arbitration 

Program invalidates it. See Morrison v. Amway Corp., 517 F.3d 

248, 254-55 (5th Cir. 2008); Al-Safin v. Circuit City Stores, 

Inc., 394 F.3d 1254, 1259-60 (9th Cir. 2005); Ingle v. Circuit 

City Stores, Inc., 328 F.3d 1165, 1179 (9th Cir. 2003), cert. 

denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204

(2004); Floss v. Ryan's Family Steak Houses, Inc., 211 F.3d 306, 

315-16 (6th Cir. 2000), cert. denied, 531 U.S. 1072, 121 S. Ct.

763, 148 L. Ed. 2d 664 (2001); Keanini v. United Healthcare 

Servs., Inc., 33 F. Supp. 3d 1191, 1195 (D. Haw. 2014); Phox v. 

Atriums Mgmt. Co., Inc., 230 F. Supp. 2d 1279, 1282-83 (D. Kan. 

2002); Cheek v. United Healthcare of the Mid-Atl., Inc., 378 Md.

139, 161 (2003).
15 A-5259-13T2

policies favoring arbitration as a means of resolving disputes 

by establishing the validity of arbitration provisions. See 9 

U.S.C.A. § 2; N.J.S.A. 2A:23B-6. Section 2 of the FAA states 

such provisions "shall be valid, irrevocable, and enforceable, 

save upon such grounds as exist at law or in equity for the 

revocation of any contract," which the United States Supreme 

Court has interpreted as reflecting the "'fundamental principle 

that arbitration is a matter of contract.'" AT&T Mobility LLC 

v. Concepcion, 563 U.S. ___, ___, 131 S. Ct. 1740, 1745, 179 L. 

Ed. 2d 742, 751 (2011) (quoting Rent-A-Center, W., Inc. v. 

Jackson, 561 U.S. 63, 67, 130 S. Ct. 2772, 2776, 177 L. Ed. 2d

403, 410 (2010)); see also N.J.S.A. 2A:23B-6 (mirroring FAA's 

language). 

Due to the preemptive effect of the FAA, a state may not 

invalidate an agreement to arbitrate on public-policy grounds or 

by defenses "'that apply only to arbitration or that derive 

their meaning from the fact that an agreement to arbitrate is at 

issue.'" Atalese, supra, 219 N.J. at 441 (quoting Concepcion, 

supra, 563 U.S. at ___, 131 S. Ct. at 1746, 177 L. Ed. 2d at 

751). However, "state courts remain free to decline to enforce 

an arbitration provision by invoking traditional legal doctrines 

governing the formation of a contract and its interpretation." 

NAACP of Camden Cnty. E. v. Foulke Mgmt. Corp., 421 N.J. Super.
16 A-5259-13T2

404, 428 (App. Div.), certif. granted, 209 N.J. 96 (2011), 

appeal dismissed, 213 N.J. 47 (2013).

Under general principles of contract law, an agreement, 

including one to arbitrate disputes, based only upon an illusory 

promise is unenforceable. See Del Sontro v. Cendant Corp., 223 

F. Supp. 2d 563, 578 (D.N.J. 2002) (citing Bryant v. City of 

Atl. City, 309 N.J. Super. 596, 621 (App. Div. 1998)). "An 

illusory promise has been defined as[] a 'promise which by [its] 

terms make[s] performance entirely optional with the promisor

whatever may happen, or whatever course of conduct in other 

respects he may pursue.'" Bryant, supra, 309 N.J. Super. at 620

(second and third alterations in original) (quoting Restatement 

(Second) of Contracts, § 2 cmt. e (1979)) (internal quotations 

marks omitted); see also Customized Distribution Servs. v. 

Zurich Ins. Co., 373 N.J. Super. 480, 493 (App. Div. 2004) ("An 

illusory promise is defined as one 'in which the promisor does 

not bind himself.'" (quoting Black's Law Dictionary 1213 (6th

ed. 1990))), certif. denied, 183 N.J. 214 (2005). Generally, 

however, "courts should seek to avoid interpreting a contract 

such that it is deemed illusory." Bryant, supra, 309 N.J. 

Super. at 621 (citing Russell v. Princeton Labs., Inc., 50 N.J.

30, 38 (1967); Nolan v. Control Data Corp., 243 N.J. Super. 420, 

431 (App. Div. 1990)).
17 A-5259-13T2

Here, despite plaintiffs' suggestions otherwise, the 

Program was not founded on an illusory promise by EY to resolve 

any Covered Disputes through arbitration. The provision 

covering Termination or Amendment of the Program reads: 

[EY] may propose termination or amendment of 

the Program by providing notice to Employees 

through the Daily Connection or other 

electronic notice on at least two occasions. 

An Employee indicates his or her agreement 

to the proposed amendment or termination, 

and such proposed change becomes effective 

as to that Employee, by continuing his or 

her employment with [EY] for at least thirty 

days after the second notice is provided.

[(Emphasis added).]

On its face, the provision provides if EY changes its 

arbitration policy, even in response to a previously-accrued 

claim, any change does not become binding on a particular 

employee until thirty days after he or she receives the second 

electronic notice of the amendment. Construing the Termination 

or Amendment clause's language as plaintiffs suggest would 

functionally read out the notice provision.

5 

 

5 Plaintiffs' extra-jurisdictional authority, most of which is 

readily distinguishable, need not be addressed at length. See

Morrison, supra, 517 F.3d at 256 (employer sought to 

retroactively apply ADR policy to facts pre-existing the 

proposal or adoption thereof); Al-Safin, supra, 394 F.3d at 1260 

(employer argued amendment to ADR policy provided reasonable 

notice to former employees); Floss, supra, 211 F.3d at 315-16

(employer retained the "right to alter the applicable rules and 

procedures without any obligation to notify"); Keanini, supra, 

(continued)
18 A-5259-13T2

Moreover, plaintiffs erroneously seek to treat the language 

that "[t]ermination or amendment will not affect a Covered 

Dispute as to which [mediation] has been initiated when the 

termination or amendment was proposed" as exhaustive, so that 

the only disputes to which an amendment to the Program would not 

apply are those already in mediation at the time EY announced 

the change. No such exhaustiveness is explicit or even 

suggested in the language of that sentence itself or the 

surrounding provisions. Therefore, even if EY altered the 

Program before an employee initiated mediation for an accrued 

claim, that employee, pursuant to the explicit terms of the 

policy, would have thirty days to initiate before the proposed 

amendment altered his or her rights under the former language. 

This reading of the notice provision does not render the 

language regarding the inapplicability of any termination or 

amendment to a Covered Dispute for which mediation has been 

 

(continued)

33 F. Supp. 3d at 1195 (ADR policy provided: "All arbitrations 

shall be conducted in accordance with the Policy in effect on 

the date [employer] receives the Demand for Arbitration" 

(emphasis added)); Phox, supra, 230 F. Supp. 2d at 1283 

(employer reserved "the right to alter, amend, eliminate or 

modify [the arbitration] agreement prior to the initiation of 

any proceeding controlled or falling under the terms of th[e

a]greement"); Cheek, supra, 378 Md. at 149 (employer retained

"the right to alter, amend, modify, or revoke the . . . [p]olicy 

at its sole and absolute discretion at any time with or without 

notice").
19 A-5259-13T2

initiated meaningless or superfluous. Rather, the latter 

clarifies that an employee who has already begun mediation need 

not take any additional action post-proposal of an amendment in 

order to preserve his or her rights under the status quo of the 

Program, pre-amendment. 

In light of the principle that "courts should seek to avoid 

interpreting a contract such that it is deemed illusory," 

Bryant, supra, 309 N.J. Super. at 621, our construction of the 

Termination or Amendment clause provides a sound and equitable 

response to the parties' concerns. First, an employer is able 

to respond to developments in the law by adopting changes to its 

ADR policy without the prohibitively burdensome and costly

obligation to negotiate the terms with each and every one of its 

employees. Indeed, we note that the facts of this case 

underscore the wisdom of endowing employers with such 

flexibility. Even a cursory review of EY's ADR policy, as it 

has developed since its initial enactment in 2002, demonstrates 

EY has repeatedly responded to positive developments in the law 

to amend its ADR procedures to provide greater, not fewer, 

protections for its employees in resolving employment-related 

disputes through ADR.

Equally important, employees need not fear that an employer 

may change the terms to retroactively alter an employee's 
20 A-5259-13T2

rights. All an employee must do, pursuant to the unambiguous 

terms of the agreement, to ensure he or she can arbitrate under 

the terms in existence at the time of accrual is provide written 

notice to EY of the intention to mediate no later than thirty 

days after receiving the second electronic notice of a proposed 

amendment to or termination of the Program. We therefore 

determine EY's ADR Program is not unenforceable as an illusory 

contract.

Plaintiffs next argue the trial court erred in dismissing 

their suit in favor of arbitration because they never agreed to 

arbitrate claims relating to the termination of their 

employment. Relying on Garfinkel and Quigley, they contend EY's 

failure to include language relating to "discharge," "dismissal" 

or "termination" in defining what constitutes a Covered Dispute 

subject to mandatory arbitration removes plaintiffs' claims

arising from termination from the Program's ambit. We are not 

persuaded.

In Garfinkel, the Court concluded an arbitration provision, 

which stated "that 'any controversy or claim' that arises from 

the [employment] agreement or its breach shall be settled by 

arbitration," was "insufficient to constitute a waiver of [the] 

plaintiff's" statutory claims. Garfinkel, supra, 168 N.J. at 

134; see also Quigley, supra, 330 N.J. Super. at 272 (noting the 
21 A-5259-13T2

lack of any reference to statutory claims in arbitration 

clause). However, in providing guidance, the Court advised:

"The better course would be the use of 

language reflecting that the employee, in 

fact, knows that other options such as 

federal and state administrative remedies 

and judicial remedies exist; that the 

employee also knows by [agreeing to] the 

contract, those remedies are forever 

precluded; and that, regardless of the 

nature of the employee's complaint, he or 

she knows that it can only be resolved by 

arbitration."

[Garfinkel, supra, 168 N.J. at 135 (quoting 

Alamo Rent A Car, Inc. v. Galarza, 306 N.J. 

Super. 384, 394 (App. Div. 1997)).]

Plaintiffs contended their claims arose under the Law 

Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Unlike 

the provisions in Garfinkel or Quigley, EY's Program explicitly 

states "[c]laims based on state statutes and local ordinances, 

including state and local anti-discrimination laws," are Covered 

Disputes. By specifically including state statutory antidiscrimination claims as Covered Disputes, EY clearly and 

unequivocally put plaintiffs on notice that any claims arising 

under the LAD, regarding termination or otherwise, were subject 

to mandatory arbitration. See also Atalese, supra, 219 N.J. at 

444 ("No particular form of words is necessary to accomplish a 

clear and unambiguous waiver of rights."). 
22 A-5259-13T2

Plaintiffs next argue the ADR policy is not a valid waiver 

of their constitutional and statutory rights to a jury trial. 

They aver the decisions in Atalese and State v. Blann, 217 N.J.

517 (2014), when read in conjunction,

stand for the proposition that when parties 

seek to arbitrate a claim that would 

otherwise be submitted to a jury, the 

arbitration agreement must inform the 

parties of (1) the number of jurors, (2) the 

parties' rights to choose the jurors, (3) 

how many jurors would have to agree on a 

verdict, and (4) who will decide the dispute 

instead of the jurors.

This argument is similarly unavailing.

In Atalese, the Court emphasized:

[W]hen a contract contains a waiver of 

rights — whether in an arbitration or other 

clause — the waiver "must be clearly and 

unmistakably established." Thus, a "clause 

depriving a citizen of access to the courts 

should clearly state its purpose." We have 

repeatedly stated that "[t]he point is to 

assure that the parties know that in 

electing arbitration as the exclusive 

remedy, they are waiving their time-honored 

right to sue."

[Atalese, supra, 219 N.J. at 444 (second 

alteration in original) (quoting Garfinkel, 

supra, 168 N.J. at 132).]

Unlike the arbitration clause struck down in Atalese, here, 

EY's written ADR policy unambiguously provides, with special 

emphasis through highlighting and italicization, "[n]either [EY]

nor an Employee will be able to sue in court in connection with 
23 A-5259-13T2

a Covered Dispute." Therefore, the Program complies with 

Atalese and plaintiffs' arguments to the contrary are without 

merit. Furthermore, we find plaintiffs' contention that Blann, 

which addressed the issue of when a criminal defendant's waiver 

of a jury trial was knowing and voluntary, see Blann, supra, 217 

N.J. at 518, is applicable in resolving the present dispute to 

be without sufficient merit to warrant further discussion in a 

written opinion. R. 2:11-3(e)(1)(E). 

Finally, plaintiffs contend the arbitration agreement is 

unconscionable because it exposes them to significant expenses 

related to the cost of paying arbitrators, which would not be 

incurred in a court of law. Plaintiffs rely on several extrajurisdictional decisions to argue cost-sharing provisions for 

arbitration expenses are invalid. Additionally, plaintiffs 

point to a footnote in Atalese, where the Court noted that its 

opinion "should not be read to approve that part of the 

arbitration clause that states: 'The costs of arbitration, 

excluding legal fees, will be split equally or born by the 

losing party, as determined by the arbitrator.'" Atalese, 

supra, 219 N.J. at 448 n.3. Plaintiffs argue this statement 

implicitly invalidates EY's fee-sharing provision.

The Supreme Court has recognized that "the prospects of 

having to shoulder all the costs of arbitration could chill 
24 A-5259-13T2

. . . [plaintiffs] from pursuing their statutory claims through 

mandatory arbitration." Delta Funding Corp. v. Harris, 189 N.J.

28, 42 (2006). In Delta Funding, the Court invalidated an 

arbitration cost-shifting provision that potentially "could 

force [the plaintiff-consumer] to bear the risk that she will be 

required to pay all arbitration costs" as an unconscionable 

"deterrent to the vindication of her statutory rights." Id. at 

43. In Atalese, the Court again expressed its displeasure with

terms that potentially shift the entire cost of arbitration to 

the losing party. See Atalese, supra, 219 N.J. at 448 n.3. 

However, both Delta Funding and Atalese are 

distinguishable.

6 Here, unlike those matters, EY's fee-sharing 

provision does not provide for the potential shifting of the 

entire cost of arbitrating to a non-prevailing employee. 

Rather, the provision states: "The parties' intent is for 

Arbitrator fees and other costs of the arbitration . . . to be 

shared equally to the extent permitted by law and the 

Arbitration Rules." Any portion an employee might pay towards 

arbitration costs is to be limited by substantive law and

 

6 Alexander v. Anthony International, L.P., 341 F.3d 256 (3d 

Cir. 2003), upon which plaintiffs also rely, is similarly 

distinguishable. See id. at 267-68 (invalidating fee provision 

requiring losing party to "bear the costs of the arbitrator's 

fees and expenses").

 
25 A-5259-13T2

arbitration rules.7 There is no language suggesting employees 

would have to shoulder the entire pecuniary burden of the 

arbitration process. Therefore, we determine EY's fee-sharing 

provision does not render its ADR policy unconscionable.8

For these reasons, we conclude EY's ADR policy, as 

reflected in the 2007 iteration of its Program, is valid and 

enforceable as to plaintiffs, and hold the trial court properly 

dismissed the complaint in favor of mandatory arbitration.

Affirmed. 

 

7 Both AAA's and JAMS' rules governing arbitration of 

employment-related disputes limit an employee's financial burden 

to the initial filing fee, with the employer being responsible 

for the balance of the costs. See American Arbitration 

Association, Employment Arbitration Rules & Mediation Procedures

1-2 (Nov. 1, 2014), available at https://www.adr.org/

aaa/ShowPDF?doc=ADRSTAGE2025292; JAMS, Employment Arbitration 

Rules & Procedures 26 (July 1, 2014), available at

http://www.jamsadr.com/files/Uploads/Documents/JAMSRules/JAMS_employment_arbitration_rules-2014.pdf.

8 Furthermore, even if the fee-sharing provision was 

unconscionable, which we hold it is not, the Program contains a 

clause providing for broad severability in the event any portion 

of its terms is found unenforceable. See Delta Funding, supra

189 N.J. at 46 ("[I]f an arbitrator were to interpret all of the 

disputed provisions in a manner that would render them 

unconscionable, we have no doubt that those provisions could be 

severed [in light of the arbitration policy's broad severability 

clause] and that the remainder of the arbitration agreement 

would be capable of enforcement.").