PetSmart Dispute Resolution Policy
PLEASE READ THIS DISPUTE RESOLUTION POLICY (“DRP”) CAREFULLY. UNLESS YOU PROPERLY ELECT NOT TO BE BOUND BY THIS DRP, AND EXCEPT AS SET FORTH BELOW, ANY COVERED DISPUTES (AS DEFINED BELOW) MUST BE RESOLVED ONLY BY VOLUNTARY MEDIATION, MANDATORY FINAL AND BINDING INDIVIDUAL ARBITRATION, OR IN A SMALL CLAIMS COURT ACTION, AND NOT BY A COURT OR AN ADMINISTRATIVE AGENCY, INCLUDING THROUGH A JUDGE OR JURY TRIAL OR AN ADMINISTRATIVE HEARING; AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN ANY CLASS, REPRESENTATIVE, OR MASS ACTIONS (AS DEFINED BELOW).
1. PURPOSE OF THE DRP. This DRP is aimed at resolving covered employment-related disputes quickly and fairly and in a mutually beneficial way. It is not meant to lessen or replace the purpose, role and effect of managers, supervisors, leaders, and any otherwise applicable internal grievance, complaint, or dispute resolution procedures available for resolving workplace issues (including, for example, the Company’s (as defined below) open door policy and toll-free complaint hotlines for complaints of wage and hour issues or unlawful harassment, discrimination, or retaliation). Informal resolution of employment-related disputes should continue to be sought through internal channels to the extent they are applicable to the disputes. But formal resolution of all employment-related disputes covered by this DRP must only be in accordance with the terms described herein.
2. APPLICATION OF THE DRP. This DRP applies to the Company and all Covered Individuals. As used in this DRP: (a) “Company” means and refers to, individually and collectively, the PetSmart entity that a Covered Individual applied for employment with, or is or was actually or allegedly employed by, including PetSmart LLC, and its parent, subsidiary, sibling and other affiliated operating divisions and entities, and its or their respective agents, employees, officers, directors, and owners; and (b) “Covered Individual” and its plural form “Covered Individuals” mean and refer to any individual who has applied for employment with the Company, who is actually or allegedly employed by the Company, or whose actual or alleged employment with the Company terminates after becoming bound by this DRP, and who wishes to initiate or participate in formal dispute resolution proceedings to resolve any Covered Disputes (as defined below).
3. DISPUTES COVERED BY THE DRP. This DRP applies only to “Covered Disputes,” which include any and all employment-related claims, causes of action, or other disputes that have already accrued, now exist, or arise in the future between a Covered Individual and the Company based on any legal, equitable, or other ground or theory (including whether any such ground or theory constitutes an unwaivable statutory right) and would constitute cognizable claims or causes of action in a federal, state, or local court or agency under applicable laws. Unless falling within the definition of Excluded Disputes, below, Covered Disputes include those arising out of or related to (i) a Covered Individual’s actual or alleged employment with or work for the Company, applying for or seeking or being denied such employment or work, the termination of such employment or work, and/or any of the terms, conditions, or benefits of such employment or work (including any wage and hour issues), (ii) issues of arbitrability (such as the formation, interpretation, applicability or enforceability of this DRP, except to the extent they are Excluded Disputes), (iii) the procedures to be followed in the arbitration proceedings, (iv) allegations of delay and waiver, (v) whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, and (vi) any disputes over the payment and/or apportionment of the arbitration forum costs (including arbitrator fees), including as to whether the arbitration forum costs provisions of this DRP are unconscionable under applicable law, which must only be heard and decided by the appointed arbitrator.
Subject to this DRP’s Representative Action Waiver and Representative PAGA Action Waiver provisions (collectively referred to in this DRP as the “Waiver Provisions”) and Mass Arbitrations provisions, below, Covered Disputes also include those that (a) arose or accrued before the date of becoming bound by this DRP, (b) arise or accrue after the date of becoming bound by this DRP, including those that are the subject of or asserted in any subsequently-threatened or filed Representative Action or Representative PAGA Action (both as defined below), (c) arise or accrue before, upon, or after a Covered Individual’s actual or alleged employment with or work for the Company terminates or his/her application for such employment or work is denied, and/or (d) concern or relate to whether the Covered Individual has suffered and/or is suffering any violation(s) of any legal obligations, including declaratory relief to resolve that issue.
4. DISPUTES NOT COVERED BY THE DRP. This DRP does not apply to “Excluded Disputes,” which are defined to mean: (i) claims for workers’ compensation benefits under state law; (ii) claims for unemployment or disability insurance or other health or welfare benefits under government-administered programs; (iii) claims arising under a pension, retirement, or other health and welfare benefit plan that contains an arbitration or other dispute resolution procedure; (iv) claims within the jurisdiction of the National Labor Relations Board; (v) claims arising or regulated under federal law for which there is an unwaivable specific statutory or regulatory enactment making such claims not arbitrable; (vi) applications for temporary or provisional equitable relief in aid of arbitration and to preserve or reinstate the status quo pending the resolution of the underlying claim in arbitration pursuant to this DRP (e.g., a temporary restraining order or a preliminary injunction), as permitted under applicable law, which may be brought either before the appointed arbitrator or a court of competent jurisdiction; (vii) disputes regarding the applicability, interpretation, enforceability, and/or severability of the Mass Arbitrations (as defined below) provisions and the Waiver Provisions of this DRP (as set forth below), including whether such provisions are governed by the Federal Arbitration Act, which must be decided only by a court of competent jurisdiction; (viii) claims or disputes required to be grieved and/or arbitrated under the terms of an applicable collective bargaining agreement, if any; and (ix) any disputes as to whether a claim or dispute falls within this definition of Excluded Disputes, which must be decided only by a court of competent jurisdiction.
5. SMALL CLAIMS COURT ACTIONS Any Covered Disputes that are within the jurisdiction of a Small Claims Court may, at the option of the party asserting such Covered Disputes, be resolved in a Small Claims Court proceeding instead of an individual arbitration proceeding pursuant to this DRP.
6. WAIVER OF JUDGE AND JURY TRIALS & ADMINISTRATIVE HEARINGS. A Covered Individual and the Company with any Covered Disputes, whether existing or accrued now or in the future, waive any and all rights to a judge or jury trial and/or administrative hearing of their Covered Disputes and agree to resolve any such disputes exclusively by final and binding individual arbitration in accordance with the terms of this DRP, whether initiated by a Covered Individual or by the Company, or in a Small Claims Court action. Unless expressly permitted under the terms of this DRP, no formal dispute resolution proceedings concerning any Covered Disputes are permitted to take place in any local, state, or federal court or agency.
Only an arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability, or formation of this DRP, including without limitation any claim that all or part of this DRP is void or voidable. An arbitrator shall also have exclusive authority to resolve all threshold arbitrability issues. However, only a court of competent jurisdiction, and not an arbitrator, shall have exclusive authority to resolve any and all disputes arising out of or relating to the Waiver Provisions and Mass Arbitrations provisions (both as defined below)—including, but not limited to, any claim that provisions in the DRP relating to such actions are unenforceable, unconscionable, illegal, void, or voidable, or that a breach of either a waiver has occurred.
7. PRE-DEMAND NOTICE REQUIREMENT. Before any arbitration is commenced, a Covered Individual and the Company must engage in a good-faith effort to resolve any Covered Disputes through an informal process. Prior to filing any arbitration demand, the party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate arbitration (“Pre-Dispute Notice”). Such Pre-Dispute Notice must include: (a) the name, telephone number, mailing address, and, if applicable, e-mail address of the initiating party; (b) a factual description of the nature and basis of the dispute; (c) the amount that the initiating party is seeking for resolution of the dispute; and (d) the initiating party’s original ink (i.e., non-electronic) signature. The party receiving such Pre-Dispute Notice shall have 30 days from the date it receives the Pre-Dispute Notice to make a written counteroffer and/or initiate mediation, unless an extension is mutually agreed upon by the parties. If the receiving party opts to initiate mediation, the parties must participate in a pre-dispute mediation conference within 60 days after the receiving party communicates an intent to engage in mediation. The initiating party may not file any demand for arbitration prior to the expiration of the 30-day period (or any mutually-agreed upon extended period) for the receiving party to make a written counteroffer and/or initiate mediation. If the parties choose to participate in a pre-dispute mediation conference, no demand for arbitration may be filed prior to the conclusion of mediation. If the receiving party does not deliver a written counteroffer or initiate mediation within 30 days after receiving the Pre-Dispute Notice, the initiating party may file its, his, or her arbitration demand in accordance with the procedures outlined in the DRP. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process described in this section. Submitting a Pre-Dispute Notice is a condition precedent that must be fulfilled before commencing individual arbitration. Any Pre-Dispute Notice, written counteroffer, or notice of intent to initiate mediation by a Covered Individual must be delivered by hand or by mail to the General Counsel of the Company at 19601 N. 27th Ave. Phoenix, AZ 85027. Any Pre-Dispute Notice, written counteroffer, or notice of intent to initiate mediation by the Company must be delivered by hand or first class mail to the last home address in the Covered Individual’s personnel or application file. Nothing in this section shall prejudice either party’s right to pursue voluntary mediation at any time, nor shall it obligate the parties to mediate any Covered Disputes except as described in this section.
8. COMMENCING ARBITRATION. So long as the Covered Individual and the Company have engaged in the pre-dispute resolution process outlined above, either party may initiate arbitration. A demand for arbitration of any Covered Disputes must be made in writing, comply with the requirements for pleadings under the Federal Rules of Civil Procedure (“FRCP”), contain the initiating party’s original ink (i.e., non-electronic) signature, and be served on the other party in the manner provided for service of a summons under the FRCP within the applicable statute of limitations periods (including on a proper registered agent for service of process).
By filing the arbitration demand with the applicable arbitration provider, the party bringing the claim in arbitration certifies that the demand complies with Rule 11 of the FRCP and any applicable state law equivalent.
9. ARBITRATOR SELECTION. The Covered Individual and the Company must mutually agree on the selection and appointment of a separate neutral arbitrator who is experienced in the laws at issue to resolve their respective individual Covered Disputes at issue. Potential arbitrators can be identified through an attorney representing a Covered Individual in connection with Covered Disputes, as well as through online resources such as www.arbitrate.com and the National Academy of Distinguished Neutrals’ Member Directory (www.nadn.org), or through national and regional arbitration service providers such as the International Institute for Conflict Prevention & Resolution (CPR) (www.cpradr.org), Judicate West (www.judicatewest.com), ADR Services, Inc. (www.adrservices.com), and IVAMS (www.ivams.com). The foregoing list is not exhaustive. If no such agreement can be reached, the Covered Individual and the Company must mutually agree on a dispute resolution services provider (“DRS Provider”) to administer the arbitration, whose procedures for appointing an arbitrator will be followed. However, neither the American Arbitration Association (“AAA”) nor JAMS will be permitted to serve as a DRS Provider to administer any aspect of any arbitration under this DRP. The appointed arbitrator must be located, and the Covered Disputes between the Covered Individual and the Company must be heard and decided by the arbitrator, within the geographic district for the United States District Court in which the Covered Individual who is a party to the Covered Disputes being arbitrated most recently applied to work for the Company, currently works for the Company, or last worked for the Company. The appointed arbitrator must interpret, apply, and enforce this DRP only as written. Any arbitrator who is appointed by a DRS Provider rather than by mutual agreement must be a retired federal court judge meeting the qualifications set forth above, unless the Covered Individual and the Company who are parties to the Covered Disputes agree otherwise.
10. ARBITRATION RULES AND PROCEDURES. The FRCP and the Federal Rules of Evidence (both of which are accessible via links at http://www.uscourts.gov/RulesAndPolicies/rules/current-rules.aspx), are incorporated into this DRP and will apply to and must be followed and enforced by the appointed arbitrator in any arbitration proceedings held pursuant to this DRP. During any such arbitration proceedings, the parties will have the right to make offers of judgment, conduct normal civil discovery, and bring motions (including to dismiss/strike and for summary judgment), as provided under the FRCP and if not inconsistent with the Waiver Provisions. If any rules or procedures of a DRS Provider administering an arbitration pursuant to this DRP are different than or inconsistent with those required to be applied or followed under this DRP, or with any other terms of this DRP, then the terms of this DRP will supersede them, control, and must be followed as written.
11. REPRESENTATIVE ACTIONS WAIVER. As used in this DRP, “Representative Action” means any action or proceeding brought or sought to be brought by any person or entity (whether or not bound by this DRP) in a representative capacity on behalf of or for the benefit of (in whole or in part) a Covered Individual, the Company, and/or any governmental entity, other than a Representative PAGA Action (as defined below). Such a Representative Action includes any type of (i) class action or arbitration, (ii) collective action or arbitration (including without limitation pursuant to the Fair Labor Standards Act [“FLSA”]), (iii) private attorney general action or arbitration outside the State of California, (iv) joined, consolidated, or coordinated actions or arbitrations, and/or (v) claims or disputes brought in a representative capacity on behalf of the general public, of any governmental entity, of other Covered Individuals or the Company, or of other persons or entities alleged to be similarly situated or aggrieved. Under this DRP, neither any Covered Individual nor the Company can bring or participate in a Representative Action in connection with any Covered Disputes, and there is no agreement, right, or authority under this DRP for any Covered Disputes to be heard, arbitrated, or decided as any type of Representative Action. A Covered Individual and the Company with any Covered Disputes, now existing or arising in the future, waive any and all rights to bring or participate in any type of Representative Action to resolve, decide, or adjudicate any Covered Disputes and are prohibited from doing so. The appointed arbitrator will have no power, authority, or jurisdiction to (a) hear or decide any Covered Disputes as any type of Representative Action; (b) award any type of remedy or relief for any Covered Disputes in connection with any type of Representative Action; (c) join or consolidate in the arbitration any Covered Disputes brought by or against any other Covered Individuals or the Company; (d) award injunctive relief other than in favor of the Covered Individual or the Company seeking such relief and only to the extent permitted by applicable law and necessary to provide relief warranted by that Covered Individual’s or the Company’s Covered Disputes; or (e) interpret, apply, enforce, or modify this DRP in any manner that would empower or authorize the arbitrator to do any of the foregoing.
Notwithstanding any other provision of this DRP or the applicable arbitration provider’s rules, the waiver of the right to bring a Representative Action does not prevent any Covered Individuals from participating in a classwide, collective, coordinated, or consolidated settlement of claims.
12. PAGA ACTIONS As used in this DRP, “PAGA” means and refers to the California Labor Code Private Attorneys General Act of 2004, which is enacted as California Labor Code Section 2698 et seq., and a “Representative PAGA Action” means and refers to any claims, action or proceeding brought or sought to be brought against Company pursuant to PAGA to recover civil penalties for the benefit—in whole or in part—of the State of California and allegedly aggrieved employees (as defined under PAGA) based on violations of the California Labor Code or applicable Wage Orders allegedly suffered by the allegedly aggrieved employee bringing the action as well as based on violations allegedly suffered by other allegedly aggrieved employees. Although a Covered Individual is permitted to arbitrate claims under PAGA for alleged violations suffered personally by the Covered Individual as expressly set forth below, a Covered Individual is not permitted to bring or participate in any Representative PAGA Action under this DRP in connection with any Covered Disputes, and there is no agreement, right, or authority under this DRP for any Covered Disputes to be heard, arbitrated, or decided as a Representative PAGA Action. Accordingly, a Covered Individual waives any and all rights to bring or participate in a Representative PAGA Action to resolve, decide, or adjudicate any Covered Disputes, either now existing or arising in the future, and is prohibited from doing so. The appointed arbitrator will have no power, authority, or jurisdiction to (i) hear or decide any Covered Disputes as a Representative PAGA Action; (ii) award any type of remedy or relief for any Covered Disputes as a Representative PAGA Action; (iii) join or consolidate in the arbitration any Covered Disputes brought by or on behalf of any other Covered Individuals or the State of California pursuant to PAGA; or (iv) interpret, apply, enforce, or modify this DRP in any manner that would empower or authorize the arbitrator to do any of the foregoing. However, without limiting the applicability or effect of the foregoing Representative PAGA Action Waiver Provisions in any way: (a) a Covered Individual retains the right to individually arbitrate Covered Disputes under PAGA pursuant to this DRP, but only with respect to recovering civil penalties for any violations of the California Labor Code allegedly suffered solely by that Covered Individual personally and not any violations allegedly suffered by any other allegedly aggrieved employees; and (b) the appointed arbitrator will have the power, authority, and jurisdiction to hear and decide whether a Covered Individual has suffered any alleged violations of the California Labor Code, either in an individual arbitration proceeding commenced by the Covered Individual or in an arbitration proceeding commenced by the Company against the Covered Individual, including for declaratory relief as to such issues.
Should a Covered Individual bring any Representative PAGA Action claims (as defined above) in breach of the foregoing Representative PAGA Action Waiver Provisions, and to the extent the parties have both arbitrable and non-arbitrable disputes that are related, the arbitrable disputes shall proceed first in arbitration and the non-arbitrable disputes shall be stayed, and any applicable statutes of limitations tolled, pending completion of the arbitration.
13. MASS ARBITRATION WAIVER. As used in this DRP, “Mass Arbitrations” means and refers to when 50 or more arbitration demands asserting the same or similar Covered Disputes are made and/or sought to be compelled by Covered Individuals during any rolling 180-day period, and such Covered Individuals are represented by the same lawyer(s) or law firm(s) and/or by one or more of several affiliated or associated lawyers or law firms. It is acknowledged, understood and agreed that under this DRP and all prior arbitration agreements between the Company and any Covered Individuals, there is not and has never been any intent, agreement or expectation of the parties to allow the prosecution of Mass Arbitrations, which are not permitted. In the event the Company reasonably believes that there are Mass Arbitrations being asserted, it shall give written notice of such to the Covered Individual and arbitrator (if appointed) in each of the arbitrations at issue and, upon giving such notice, the Company shall not have any further obligation to arbitrate those arbitrations, and they shall be automatically stayed, pending the Company seeking a determination from a court of competent jurisdiction that the arbitrations at issue are Mass Arbitrations. The Company will not be required to pay any arbitration fees as a condition of seeking such a court determination. Additionally, no payment for filing fees, administrative fees or costs, or arbitrator fees shall be deemed due with respect to any of the Mass Arbitration demands as to which a dispute has been raised until after the dispute(s) has/have been resolved by a court of competent jurisdiction. Fees and costs related to resolving whether the demands constitute Mass Arbitrations shall be shared equally by the parties. Should a court of competent jurisdiction hold that any arbitration demands made or sought to be compelled by any Covered Individual under this DRP is one of such Mass Arbitrations, then the Company will not be required to arbitrate the Covered Disputes at issue therein, which instead will be litigated in a court of competent jurisdiction, and the Company shall be awarded reasonable costs for expenses incurred in litigating whether the demands constitute Mass Arbitration demands.
14. DECIDING COVERED DISPUTES. Within 30 days following the close of the arbitration merits hearing, the Covered Individual and the Company will have the right to submit to the arbitrator, and must serve on each other, a post-hearing brief not to exceed 50 pages in length. The parties, with the arbitrator’s approval, may agree to extend this time deadline and increase this page limitation, and the arbitrator will have the authority to grant requests for such extensions and increases by either the Covered Individual or the Company for good cause shown. Subject to and without waiver or limitation of the Waiver Provisions of this DRP, the arbitrator will be empowered to award the Covered Individual or the Company any individual remedy at law or in equity that the party otherwise would have been entitled to had the matter been individually litigated in a court or before a governmental agency with jurisdiction over the Covered Disputes being arbitrated. The authority to award any remedy, however, is subject to whatever limitations on such remedies exist under applicable law. The appointed arbitrator will have no authority or jurisdiction to issue any award that is contrary to or inconsistent with the terms and provisions of this DRP and the applicable laws at issue. Within 30 days after a dispositive motion is fully briefed and heard, and within 30 days after a merits hearing is closed and all post-hearing briefing has been submitted, the arbitrator must issue an award in writing on the dispositive motion and/or on the merits which must be accompanied by or include a written, reasoned statement of decision with findings of fact and conclusions of law supporting the award. A judgment of any court having jurisdiction may be entered on the arbitrator’s award upon it being confirmed by such court. However, the arbitrator will not have any power or authority to commit errors of law or legal reasoning and, to the extent permitted under applicable law, any award by the arbitrator shall be vacated or corrected for any such error on petition or appeal to a court of competent jurisdiction. An arbitrator’s decision in one arbitration concerning a Covered Dispute shall not be binding or have any preclusive effect on any other arbitration involving a Covered Dispute.
15. CONFIDENTIALITY OF ARBITRATION PROCEEDINGS. Unless otherwise not permitted under applicable law, the parties to the Covered Disputes being arbitrated and the arbitrator shall maintain the existence, content, and outcome of any arbitration proceedings held pursuant to this DRP in the strictest confidence and shall not disclose the same without the prior written consent of all the parties.
16. PAYMENT OF ARBITRATION FORUM COSTS. The Covered Individual and the Company will each pay the costs and fees for their respective attorneys’ prosecution or defense of the Covered Disputes being arbitrated, subject to any remedies to which the Covered Individual and the Company may later be entitled under applicable law. To the extent required by binding United States Supreme Court precedent, the Company will pay up to all of the arbitration forum costs (including arbitrator fees), as apportioned by the arbitrator in accordance with such legal authority. Unless binding United States Supreme Court precedent requires one party or the other to bear all or a greater share of the arbitration forum costs (including arbitrator fees), such costs shall be apportioned equally between the Covered Individual and the Company. Any other apportionment by the appointed arbitrator must be based on admissible, competent evidence of the party’s inability to pay the equal apportionment of costs, including the resources and/or obligation of the party’s counsel to advance and pay such costs on behalf of the party. In the event there is a good faith dispute over proper payment or apportionment of any arbitration-related fees, any delay from resolving the dispute shall not be construed as a waiver of the right to arbitrate under this DRP.
17. OTHER AVAILABLE REMEDIES. Mediation, mandatory final and binding individual arbitration, or a Small Claims Court action in accordance with the terms of this DRP are the sole and exclusive remedies for the formal resolution of all Covered Disputes, except as otherwise expressly provided in this DRP.
18. EXHAUSTING ADMINISTRATIVE REMEDIES. This DRP does not prevent or excuse the Covered Individual or the Company from satisfying any applicable statutory and/or regulatory conditions precedent or jurisdictional prerequisites to pursuing any Covered Disputes by, for example, giving proper notices to, filing administrative charges with, or obtaining right to sue notices or letters from federal, state or local governmental agencies. After complying with and exhausting all such remedies, conditions, or prerequisites, voluntary mediation, final and binding individual arbitration, or a Small Claims Court action in accordance with this DRP are the sole and exclusive remedies or formal methods of resolving the Covered Disputes.
19. PARTICIPATION IN GOVERNMENT PROCEEDINGS. All Covered Individuals retain the right under the National Labor Relations Act (“NLRA”) to file unfair labor practice charges with the National Labor Relations Board (“NLRB”), and to file charges or complaints with the United States Equal Employment Opportunity Commission (“EEOC”), the United States Department of Labor, and other federal, State, and local government agencies and officials for investigation under applicable laws within their jurisdiction, including but not limited to alleged criminal conduct or unlawful employment practices. Further, all Covered Individuals retain the right to (1) report any good faith allegation of unlawful employment practices to any appropriate federal, State, or local government agency enforcing discrimination laws; (2) report any good faith allegation of criminal conduct to any appropriate federal, State, or local government official; (3) participate in a proceeding with any appropriate federal, State, or local government agency enforcing discrimination laws; (4) make truthful statements or disclosures required by law, regulation, or legal process; and (5) request or receive confidential legal advice. In addition, all Covered Individuals retain the right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged unlawful employment practices on the part of the Company, or on the part of the Company’s agents or employees, when the Covered Individual has been required or requested to attend the proceeding pursuant to a court order, subpoena, or written request from an administrative agency or legislative body. However, all of the foregoing are only to the extent they are requirements of laws or regulations that are not otherwise preempted by applicable federal law, and nothing in this DRP is intended or should be construed as any type of express or implied waiver or limitation of the Company’s right to enforce the provisions of this DRP to the maximum extent permitted by controlling law.
20. LAW GOVERNING THE DRP. This DRP, any arbitration proceedings held pursuant to this DRP, and any court or other proceedings concerning arbitration under this DRP are expressly subject to and governed by the Federal Arbitration Act, 9 U.S.C. section 1 et seq. (the “FAA”), including the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. section 201 et seq. (the “Convention”), if the Convention is applicable, and Covered Individuals and the Company waive the application or enforcement of any provision of the FAA and/or any state law that would otherwise exclude this DRP from being governed by the FAA and/or from being applicable to any Covered Disputes. The Company and Covered Individuals agree that the Company is engaged in transactions involving interstate commerce. To the extent that state law is applicable under the FAA and/or the Convention, and/or in the event a court of competent jurisdiction holds or decides that this DRP and/or its Waiver Provisions are not subject to and governed by the FAA, then the laws of the State of Delaware, where PetSmart LLC is incorporated, will be the applicable state law, as applicable and without regard to or application of any conflict of laws principles (the “Chosen State Law”). To that end, should a court of competent jurisdiction hold or decide that the FAA does not govern this DRP and/or its Waiver Provisions, then in that event the Delaware Uniform Arbitration Act, Del. Code tit. 10, section 5701 et seq. (the “Delaware UAA”) will govern instead, and by becoming bound by this DRP, the Company and each Covered Individual desire to have the Delaware UAA apply to this DRP.
21. OPTING OUT OF THE DRP OR ITS CHOSEN STATE LAW. Not later than the 30th calendar day after the date the Covered Individual has received notice or a copy of this DRP (the “Election Deadline”), the Covered Individual can elect not to be bound by this DRP or its Chosen State Law provision by giving the Company written notice of such election (an “Election Notice”). The Company has no preference as to whether the Covered Individual makes either of such elections, and a Covered Individual should feel free to do so without fear of retaliation or reprisal by the Company, which is strictly prohibited.
The Covered Individual’s Election Notice to the Company must be in writing and (i) state the Covered Individual’s name, mailing address, phone number, e-mail address (if any) and the Covered Individual’s Applicant or Employee Identification Number or other unique identifier used by the Company (if any); (ii) state that the Covered Individual is electing not to be bound by either this DRP and/or its Chosen State Law provision; (iii) be signed and dated by the Covered Individual; and (iv) be sent or delivered by the Covered Individual to the Company on or by the Election Deadline to PetSmart’s General Counsel, 19601 N. 27th Ave., Phoenix, AZ 85027, Fax: 623-580-6103, E-mail: [email protected], via either (a) hand delivery, with the Covered Individual being given an Acknowledgment of Receipt of the Election Notice; (b) fax transmission which generates an accurate written confirmation of the fax transmission; (c) e-mail with the word “ELECTION NOTICE” in the subject line of the e-mail message; or (d) the United States Postal Service (“USPS”) or private courier (such as FedEx, UPS, or DHL) using delivery services that produce a written record establishing the dates the notice was sent to and received by the Company (a “Mail Record”).
Before deciding whether to give the Company an Election Notice, the Covered Individual is being provided with an opportunity to consult with an attorney and/or other advisors of the Covered Individual’s choosing. If a Covered Individual gives an Election Notice, he or she must maintain a copy of the Election Notice sent to the Company and, as may be applicable, a copy of (a) the Acknowledgment of Receipt received from the Company, (b) the fax transmission confirmation; (c) the Covered Individual’s e-mail message, and any attachment(s) thereto, or (d) the Mail Record (collectively, “Election Records”). In the event of any dispute as to whether a Covered Individual gave the Company an Election Notice, the Covered Individual will have the burden of proving he or she did so by producing a copy of the Election Notice and one of the Election Records, as applicable. If a Covered Individual fails to comply with these requirements for giving the Company an Election Notice and proving such an election was made, the Covered Individual will be deemed to have irrevocably agreed to be bound by all of this DRP’s provisions.
22. PROHIBITION OF RETALIATION. The Company does not tolerate, and strictly prohibits, any form of retaliation against a Covered Individual for filing administrative charges and complaints, pursuing or opposing resolution of any Covered Disputes under this DRP, or giving the Company an Election Notice.
23. DRP’S IMPACT ON PRIOR ARBITRATION AGREEMENTS. Except with respect to any Covered Disputes currently being arbitrated on an individual basis under or pursuant to an earlier arbitration agreement or version of this DRP in effect before a Covered Individual becomes bound by the terms of this version of the DRP, this DRP supersedes and replaces all prior policies or agreements providing for arbitration of any Covered Disputes between any Covered Individual and the Company (a “Prior Arbitration Agreement”). However, if a Covered Individual properly elects not to be bound by this DRP as set forth above, or this DRP is otherwise not binding on a Covered Individual in whole or in part, then the Prior Arbitration Agreement will not be superseded and replaced to that extent and will remain in force and effect to that extent as between the Covered Individual and the Company.
24. EMPLOYMENT STATUS AND ABILITY TO NEGOTIATE DRP. Nothing in this DRP guarantees employment to or changes the at-will employment status of any Covered Individual, which can only be changed by a written agreement expressly stating it changes that status and is signed by both the Covered Individual and Company’s CEO. The terms of this DRP will survive the termination of a Covered Individual’s application for employment and, if hired, the termination of the Covered Individual’s employment relationship with Company, and remain binding and in effect. Further, this DRP is not a non-negotiable material term that a Covered Individual is required to accept in order to obtain or retain employment with Company. Rather, it is the result of a good faith negotiation between the Covered Individual and Company, to the extent that the Covered Individual desires to negotiate any of the terms of this DRP, and is supported by good and valuable consideration the receipt and adequacy of which is acknowledge by the Covered Individual and Company (including without limitation mutuality of obligation to arbitrate on the part of Company and the Covered Individual, consideration for potential employment, and/or obtaining or continued employment with Company and the mutual benefits of such employment). Any Covered Individual who wishes to negotiate the terms of this DRP can contact Company’s General Counsel to do so, whose identity can be found at the URL: https://www.petsmartcorporate.com/management-team/, and whose contact information can be obtained by contacting PetSmart’s Legal Department at (623) 587-2009 or via e-mail at [email protected], or mailing correspondence to PetSmart’s General Counsel, 19601 N. 27th Ave., Phoenix, AZ 85027.
25. MODIFICATIONS OR TERMINATION OF DRP. This DRP is the full and complete policy and agreement between the Covered Individual and the Company relating to the formal resolution of Covered Disputes. It may not be modified or terminated except in writing, or as otherwise expressly permitted or required by this DRP or controlling law, including by the Company after 30 days’ advance written or electronic notice to Covered Individuals. Any modification or termination of this DRP will be prospective only and will not apply to any pending individual arbitration, mediation, or Small Claims Court action of any accrued Covered Disputes that was initiated pursuant to this version of the DRP prior to the expiration of the 30-day period.
26. SEVERABILITY. If any provision of this DRP is deemed invalid or unenforceable, it will be severed and the remainder of this DRP will not be affected. Notwithstanding the foregoing, if a court of competent jurisdiction determines that this DRP is lacking in any material respect in any protections for Covered Individuals required under applicable law, the Company shall be permitted, at its option, to adhere to any such protections in order to ensure the enforceability of this DRP.
27. COMPANY DOES NOT WAIVE ENFORCEMENT OF THE DRP. The failure of the Company at any time to require any Covered Individual’s performance of any provision of this DRP shall not affect its right thereafter to enforce the same; nor shall the waiver by the Company of any breach of any provision of this DRP be construed to be a waiver of any succeeding breach of any such provision, or as a waiver of the provision itself, or as a waiver of the breach of any other provision of this DRP.
28. SIGNATURES NOT REQUIRED. Unless the Covered Individual elects not to be bound by this DRP as set forth herein, the application for or continuation of employment with the Company by the Covered Individual following actual or constructive notice or knowledge of this DRP is deemed the Covered Individual’s acceptance of and agreement to be bound by all of its terms and provisions, other than the Chosen State Law provision if the Covered Individual elects not to be bound thereby as set forth in this DRP. The issuance of this DRP is deemed the Company’s acceptance of and agreement to be bound by all of its terms. Should any provision be made on this DRP document or on any related document, for signature by the Company and/or by a Covered Individual, such signatures are not intended to be needed by the Company and/or a Covered Individual as a manifestation of their assent to be bound by the terms and provisions of the DRP, and no signature by a Covered Individual or the Company is required for this DRP to apply to Covered Disputes, except to the extent required for its enforcement under the Chosen State Law, if applicable.
PETSMART DISPUTE RESOLUTION POLICY ACKNOWLEDGMENTS
I acknowledge that I have had the opportunity to review the PetSmart Dispute Resolution Policy (“DRP”) by clicking on a hyperlink in PetSmart’s job application system in which I am making these acknowledgments and/or by visiting the Internet URL address https://www.petsmartcorporate.com/disputeresolutionpolicy/, that I have read the DRP, and that I understand the DRP’s terms and provisions, which are incorporated herein by this reference as though set forth in full.
In consideration of, as presently applicable, either (a) my application for employment with Company and Company’s consideration of me for potential employment, or (b) my employment or continued employment by Company, I hereby agree that if any Covered Disputes (as defined in the DRP) exist or arise between the Company and me (as defined in the DRP), the Company and I are and will be bound by the provisions, terms, and conditions of the DRP, including its final and binding arbitration and Representative Action and Representative PAGA Action (both as defined in the DRP) waiver provisions and its Mass Arbitrations (as defined in the DRP) provisions. I further understand and agree that nothing in the DRP changes that my employment by the Company will be (if I have not yet been hired), or is and will continue to be (if I am presently employed), “at will” and can be terminated at any time for any reason by either the Company or me.
Pursuant to the terms of the DRP, both the Company and I each waive our rights to have any Covered Disputes (as defined therein) heard or decided through any type of judge or jury trials, class actions, class arbitrations, collective actions, collective arbitrations, “Representative Action” or “Representative PAGA Action” (as defined therein), “Mass Arbitrations” (as defined therein), or coordinated or consolidated arbitrations, actions, or proceedings, all of which are prohibited under the DRP, and the Company and I agree that any Covered Disputes can only be resolved through mediation, an individual final and binding arbitration proceeding, or a Small Claims Court action, except as otherwise expressly set forth in the DRP, including in its Mass Arbitrations provisions.
I acknowledge, understand, and agree that I can elect not to be bound by the DRP or its Chosen State Law provisions by following the procedures set forth in Section 21 of the DRP (“OPTING OUT OF THE DRP OR ITS CHOSEN STATE LAW”) for giving the Company written or electronic notice of my election within 30 days of either my application for employment or being put on notice during my employment of the DRP’s existence and provisions, and that if I do not follow those procedures, the Company and I will be required to arbitrate any Covered Disputes in accordance with the terms of the DRP. I further acknowledge, understand, and agree that the Company does not have a preference as to whether I elect not to be bound by the DRP or its Chosen State Law provisions, that I am not in fear of retaliation or reprisals (which is strictly prohibited by the Company), that I can consult with independent legal counsel (at my own expense) about whether I should make such an election, that no representations about the DRP have been made to me by the Company other than as set forth herein and in the DRP, and that I will not rely on any representations about the DRP by the Company other than as set forth herein and in the DRP.
I acknowledge, understand, and agree that the DRP is not a non-negotiable material term that I am required to accept in order to apply for, obtain or retain employment with the Company, and that to the extent I desire to do so, I am free to seek to negotiate its terms as set forth in Section 24 of the DRP. If I primarily reside in California, then I acknowledge and agree that I have in fact represented myself or been individually represented by legal counsel in negotiating the Chosen State Law provisions of the DRP, if I desired to engage in such negotiating, and if no such negotiating occurred, it was because I did not desire to negotiate the Chosen State Law provision of the DRP.