NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although 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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2546-20
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 supervisory
capacity,
Defendants-Respondents.
______________________________
Submitted December 15, 2021 – Decided March 11, 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.
O'Connor, Parsons, Lane & Noble, LLC, attorneys for
appellant (Gregory B. Noble, of counsel and on the
briefs; R. Daniel Bause, on the briefs).
Jackson Lewis, PC, 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 governed 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, 2021 order compelling arbitration of
his LAD claims and dismissing his complaint without prejudice. We affirm the
portion 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
section 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 16, 2019, plaintiff Obadiah Salters
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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 arbitrate all disputes as a condition of being
considered for employment. On March 18, 2019, plaintiff acknowledged
receiving Brinker's policies and procedures 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 agreement 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 state "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 agreement
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, which Brinker may have against you
or you may have against Brinker, its affiliates,
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subsidiaries, divisions, predecessors, successors,
assigns and their current and former employees,
officers, directors, and agents, arising out of or in any
manner related to the employment relationship. . . .
Such 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 covered by
this Agreement are subject to arbitration, not a court or
jury trial. [1]
....
All orders of the arbitrator (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 Arbitrate 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 pending. Those exclusions did not include claims under
LAD.
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Brinker and a manager at the restaurant where he worked. In his complaint,
plaintiff asserted 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 30, 2021, the
trial court entered an order and issued a written decision compelling arbitration
of all of plaintiff's claims against defendants 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
Brinker 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 that 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 reject
A-2546-20
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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 arguments, he is not entitled to fees
and costs.
1. The Enforceability of the Arbitration Agreement.
The interpretation of an arbitration agreement and its enforceability are
questions of law that we review de novo. Goffe v. Foulke 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 copy of the
arbitration agreement 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 question 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, arbitration 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 Cnty. 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.
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Accordingly, "the FAA 'permits states 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 Martindale v. Sandvik, Inc., 173
N.J. 76, 85 (2002)).
"An 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.'" Ibid. (quoting Morton v. 4
Orchard Land Tr., 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; see 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 waiver 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 and
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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 employee 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 the 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 holding 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 continued 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 Martindale, 173
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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 arbitration agreement provided to and reviewed by plaintiff is valid
and enforceable. The terms of the agreement were clear in stating that the parties
were agreeing to arbitrate all employment-related claims before an AAA
arbitrator. In that regard, the arbitration agreement expressly stated that it
covered discrimination claims, including statutory claims. The arbitration
agreement was also the product of mutual assent. Plaintiff was sent a copy of
the arbitration agreement. Thereafter, he acknowledged that he reviewed and
agreed to the agreement. Consequently, we hold that the arbitration agreement
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 Section 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 arbitration
agreement. Although we agree with the trial court that the arbitration agreement
covered all claims asserted in plaintiff's complaint, the agreement delegated to
the arbitrator any question concerning the scope of the agreement. 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).
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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 amendment 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 arbitration
agreement in March 2019. The agreement became effective when he began
working for Brinker in April 2019. Accordingly, Section 12.7 of LAD would
apply to the arbitration agreement between plaintiff and Brinker unless it is pre-
empted by the FAA. That 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 that 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 set forth in Antonucci,
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we hold that Section 12.7 is pre-empted and cannot be applied to the arbitration
agreement between plaintiff and Brinker.
Plaintiff also makes arguments concerning the cases the trial court relied
on and the right to attorneys' fees on the motion and this appeal. We reject those
arguments 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 compelling 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.
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OBADIAH SALTERS v. BRINKER INTERNATIONAL, INC. (L-6543-20, ESSEX COUNTY AND STATEWIDE)
Combined Opinion