United States District Court, D. Colorado
SARAH M. HICKEY, AMY M. GULDEN, and, JAY A. RAGSDALE, on behalf of themselves, individually, and on behalf of all others similarly situated, Plaintiffs,
BRINKER INTERNATIONAL PAYROLL COMPANY, L.P., Defendant.
ORDER GRANTING MOTION TO COMPEL ARBITRATION
ROBERT E. BLACKBURN, District Judge.
The matter before me is the Defendant's Motion To Compel Arbitration of Individual Claims and Dismiss Class Action Claims, Collective Action Claims and Other Proceedings [#22],  filed August 12, 2013. The issues implicated by the motion are fully briefed, and oral argument would not aid in their resolution. I grant the motion and dismiss this action.
I putatively have jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction).
II. STANDARD OF REVIEW
The decision whether to enforce an arbitration agreement involves a two-step inquiry. First, I must determine whether the parties agreed to arbitrate the dispute. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 626, 105 S.Ct. 3346, 3353, 87 L.Ed.2d 444 (1985); Williams v. Imhoff, 203 F.3d 758, 764 (10th Cir. 2000). I then must consider whether any statute or policy renders the claims non-arbitrable. Mitsubishi Motors Corp., 105 S.Ct. at 3355; Williams, 203 F.3d at 764.
Plaintiffs are present and former banquet servers at defendant's Maggiano's Little Italy Restaurants in Colorado. Plaintiffs claim defendant has failed to pay them all tips to which they are entitled and has denied them meal and rest breaks required by Colorado state law. They have filed claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), the Colorado Wage Act, §8-4-101 et seq., C.R.S., and the common law of Colorado.
Defendants have moved to dismiss the class and collective action claims and to compel arbitration of the individual claims pursuant to two agreements which the named plaintiffs signed in 2009 and 2012, respectively. The 2009 agreements provide in relevant part:
Because of, among other things, the delay and expense which result from the use of the court systems, any legal or equitable claims or disputes arising out of or in connection with employment, terms and conditions of employment, or the termination of employment with [defendant] will be resolved by binding arbitration instead of in a court of law or equity. This agreement applies to all disputes involving legally protected rights.
(Def. Motion App., Exhs. 1-A, 2-A, & 3-A at 1 [#22], filed August 12, 2013.) In 2012, each of the named plaintiffs executed a second arbitration agreement identical to the 2009 agreement with respect to the agreement to arbitrate, but providing further that the employee "waive[d] the right to commence or be party to any representative, collective, or class action" and that "[t]he arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of representative, collective, or class proceeding." ( Id., Exhs. 1-B, 2-B, & 3-B at 1-2.) Defendant argues that these agreements are valid and binding and thus preclude plaintiffs from seeking relief on their individual claims other than in arbitration, and on their class and collective claims at all.
Before considering plaintiffs' arguments going to the validity of the arbitration agreements themselves, I must address their suggestion that I should stay determination of this matter pending resolution of charge against defendant before the National Labor Relations Board ("NLRB"). After this lawsuit was filed, plaintiffs filed a charge with the NLRB asserting that the 2012 agreements improperly infringe on their right to engage in concerted activity under the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151 et seq. For this proposition, they rely on the NLRB's decision in In re D.R. Horton, Inc., 357 NLRB No. 184, 2012 WL 36274 (N.L.R.B. Jan. 3, 2012), in which the NLRB determined that
an agreement that precludes [employees] from filing joint, class or collective claims addressing their wages, hours or other working conditions against the employer in any forum, arbitral or judicial... unlawfully restricts employees' [NLRA] Section 7 right to engage in concerted action for mutual aid or protection, notwithstanding the [FAA], ...