DECISION AND ORDER UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, including e-filed documents/exhibits numbered 18 through and including 29, this motion is decided as follows Defendants PTL Staffing LLC, PTL Events LLC, and Seth Whalen (collectively, “Defendants”) move the Court by Notice of Motion for an Order pursuant to CPLR §7503, which inter alia, grants Defendants’ motion to compel arbitration and stay action. The Plaintiff filed a Class Action Complaint pursuant to New York Labor Law (“Labor Law”) §190 et seq., Labor Law §196-d, and 12 New York Codes, Rules and Regulations (“NYCRR”) Part 146, including subsections 2.18 and 2.19, to recover unlawfully retained tips and gratuities owed to Plaintiff and other similarly situated persons who are presently or were formerly employed and/or assigned to provide catering services for the benefit of Defendants PTL STAFFING LLC; PTL EVENTS LLC; SETH WHALEN; and any other related entities (collectively referred to as “Defendants”) at Defendants’ catered events held in the State of New York. The Plaintiff contends that the Defendants have engaged in a policy and practice of unlawfully retaining employees’ gratuities at all Defendants’ catered events held in New York State. The Defendants contend that the Plaintiff reviewed and accepted the terms of the “TriNet Terms and Conditions Agreement,” which contains a dispute resolution protocol and mandatory arbitration of claims provision. The TriNet arbitration clause applies to “not limited to all claims whether arising in tort or contract and whether arising under statute or common law including, but not limited to, any claim of breach of contract, discrimination or harassment of any kind. The Federal Arbitration Act (“FAA”) applies to this [dispute resolution protocol].” The Defendant PTL describes itself as a “customer” of TriNet and contends that PTL employees, including the Plaintiff, access an online portal and part of the process of hiring employees. The Defendant contends that the Plaintiff accepted the dispute resolution protocols using her unique username and password. The Defendants offer the affidavit of a TriNet employee which provides that the Plaintiff accepted the “TriNet Terms & Conditions Agreement” and in doing so accepted the dispute resolution protocol and its mandatory arbitration provisions. In contrast, the Plaintiff contends that her employment relationship with the Defendant PTL was governed by a six page “Employment Agreement” that the Plaintiff signed electronically. The Employment Agreement provides that any dispute resulting in litigation will be heard in the federal or state courts located in the State of New York, and that any modification of the Employment Agreement must be signed by both parties, and may only be modified or amended if the amendment is made in writing, and signed by both parties. The Plaintiff contends that her Employment Agreement with the Defendant PTL was the main agreement she had with her employer and that the TriNet Agreement is ancillary to this agreement but does not ultimately supercede it. The Plaintiffs characterize the TriNet Agreement as being directed to “certain administrative purposes, which may include processing payroll (based on information provided by your worksite employer), sponsoring and administering employee benefits as applicable, and providing certain other human resources services.” The TriNet Agreement further provides that the Employment Agreement is not superseded especially as to compensation, employment duties and responsibilities, actual hours worked, “and all other terms and conditions of your employment at the worksite.” (NYSCEF Doc No. 23). An alternate dispute resolution agreement, like an arbitration agreement, must be clear, explicit, unequivocal and must not depend upon implication or subtlety. (Navillus Tile, Inc. v. Bovis Lend Lease LMB, Inc., 74AD3d 1299 (2nd Dept 2010). The Plaintiff ultimately entered into an employment contract with the Defendants, and not with TriNet. An arbitration is contractual by nature and a party cannot be required to submit to the arbitration of any dispute which she has not agreed so to submit. (Thomson-CSF, S.A. v. American Arbitration Association, 64 F3d 773 [2nd Cir 1995]). In interpreting a contract, the intent of the parties governs. A contract should be construed so as to give full meaning and effect to all of its provisions. Words and phrases are given their plain meaning. Rather than rewrite an unambiguous agreement, a court should enforce the plain meaning of that agreement (Zolotar v. NY Life Ins. Co., 172 AD2d 27, 28 [1st Dept 1991]). The Plaintiff’s employment at PTL was subject to a comprehensive Employment Agreement. The agreement recognized that the Plaintiff was an employee at will, subject to termination at any time. The Employment agreement described particular duties of the Plaintiff as a member of the service staff and anticipates that any dispute arising under the agreement resulting in litigation would be heard in federal or state courts located in the State of New York. Section 13 of the Employment Agreement provides that the Agreement between the parties contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether written or oral. Section 14 of the Employment Agreement provides that any modification of the Employment Agreement shall be effective only when made in writing and signed by both parties. Although New York is an employment at will jurisdiction, there exists in New York a robust statutory and regulatory regime dedicated to the protection of working people, and the legislative intent behind Labor Law 196-d is particularly concerned with the welfare of individuals employed in the service industry. “The legislature finds, however, that too often the working people of our state do not receive the full wages they have earned, and that some workers are never paid at all for their labor. Underpaid and unpaid workers are found in all areas of commerce and industry, but are concentrated in low-wage areas such as garment factories and the service industry.” (Labor Law §196-a (Consol., Lexis Advance through 2023 released Chapter 1-49, 61-130) citing to Laws 1997, ch 605, §§1 and 2, effective Nov 16, 1997). A plain reading of the Plaintiff’s employment contract permits the redress of workplace disputes through litigation, and the Plaintiff’s participation with an electronic portal cannot be considered a modification of the express terms of the Employment Agreement. Furthermore, New Yorkers not only have litigation options available to redress employment disputes, but may also file complaints with the New York State Department of Labor. An interpretation of the parties’ Employment Agreement which incorporates by reference the TriNet terms and conditions into the Plaintiff’s relationship with the Defendant PTL Staffing — limiting the Plaintiff to arbitration — would act in contradiction to an important regulatory concern of the State of New York regarding the protection of a statutorily recognized vulnerable population of working people. Accordingly, upon consideration of the papers submitted, including their supporting exhibits, the Defendant’s motion seeking to compel an arbitration of this matter is DENIED. The foregoing constitutes the Decision and Order of the Court. Dated: May 31, 2023
