United States District Court, D. Kansas
JAMES LOCKARD, on behalf of himself and all others similarly situated, Plaintiff,
EYM KING OF KANSAS, LLC, and EYM GROUP, INC., Defendants.
MEMORANDUM AND ORDER
A. ROBINSON UNITED STATES DISTRICT JUDGE
James Lockard brings this action on behalf of himself and
others similarly situated, alleging unlawful wage practices
under the Fair Labor Standards Act (“FLSA”)
against Defendants EYM King of Kansas LLC and EYM Group, Inc.
(collectively “EYM”) at their Burger King
restaurants. Before the Court is Defendants' Motion to
Compel Arbitration and to Stay this Action (Doc. 12). The
motion is fully briefed and the Court is prepared to rule. As
described more fully below, the Court grants Defendants'
September 24, 2016, EYM hired Plaintiff, who worked at
several Burger King stores in the Kansas City area. That same
day, Plaintiff signed an Arbitration Agreement that was
included in the EYM King of Kansas, LLC Hourly Management
Policies and Procedures (“Handbook”). The
Handbook is a thirty-three page consecutively-paginated
document that includes eighteen separate policies and
procedures that each contains its own signature block. It
makes clear that it is not an employment agreement. The first
item in the Handbook is an Election and Arbitration Agreement
(“Arbitration Agreement”), which states, in
a) Mutual Promises to Resolve Claims by Binding
Arbitration: I recognize that disputes may arise
between the Company (or one of its affiliates) and me during
or after my employment with the Company. I understand and
agree that any and all such disputes that cannot first be
resolved through the Company's internal dispute
resolution procedures or mediation must be submitted to
I acknowledge and understand that by signing this Agreement I
am giving up the right to a jury trial on all of the claims
covered by this Agreement in exchange for eligibility for the
Plan's medical, disability, dismemberment, death and
burial benefits and in anticipation of gaining the benefits
of a speedy, impartial, mutually-binding procedure for
This agreement to resolve claims by arbitration is mutually
binding upon both me and the Company (and its affiliates),
and it binds and benefits our successors, subsidiaries,
assigns, beneficiaries, heirs, children, spouses, parents and
legal representatives. . . . .
The types of claims covered by this Agreement include, but
are not limited to, any and all:
Claims for wages or other compensation; claims for breach of
any contract, covenant, or warranty (express or implied); . .
Claims for a violation of any other federal, state or other
governmental law, statute, regulation or Ordinance . . . .
. . . .
d) Complete Agreement: The Arbitration
Procedures in Section IX of the Summary Plan description (and
also in section I, paragraph B of the Plan) are incorporated
by reference hereto, and made part of this Agreement the same
as if they were all written here. This Agreement, together
with the incorporated Arbitration Procedures in Section IX of
the Summary Plan Description, is the complete agreement
between the company and me. It takes the place of any oral
understanding about arbitration, but other written
agreements, policies or procedures may also require me to
arbitrate any disputes that I may have with the Company.
I am not relying on any statements, oral or written, on the
subject, effect, enforceability or meaning of this Agreement,
except as specifically stated, in this Agreement. If any
provision of this agreement is determined to be void or
otherwise unenforceable, in whole or in part, such
determination shall not affect the validity of the remainder
of this Agreement.
e) Not An Employment Agreement: Neither this
Agreement, the Plan nor the Summary Plan Description shall
ever be construed to create any contract of employment,
express or implied. This agreement, the Plan or the Summary
Plan description do not in any way alter the at-will status
of my employment with the Company.
f) Ratification for Modification or
Revocation: I agree that each and every time that I
receive Plan benefits, or have Plan benefits paid to a
medical provider on my behalf, I ratify and reaffirm this
Agreement the same as if I had signed this Agreement again on
the date the benefits were paid.
g) Requirements for Modification or
Revocation: This agreement will survive the
termination of my employment with the Company. This agreement
can only be revoked (except as provided in the paragraph
below) or modified by a writing signed by both me and the
Company's authorized representative that specifically
states an intent to revoke or modify this Agreement, and this
requirement of a signed writing cannot itself be waived
except by such a signed writing.
. . . .
I have read the Election and Arbitration Agreement and have
been given the opportunity to clarify any questions regarding
its contents. By signing this Election and Arbitration
Agreement, I, the undersigned employee of EYM KING OF KANSAS,
LLC elect to participate in the EYM KING OF KANSAS, LLC
Employee Injury Benefit Plan (hereinafter “the
Plan”), and agree to each of the terms contained in the
Election and Arbitration Agreement and the
signed and dated the Arbitration Agreement on September 24,
2016, on page 6 of the Handbook.
never received, nor was offered participation or eligibility
in the EYM King of Kansas, LLC Employee Injury Benefit Plan,
referenced in the Arbitration Agreement. Section IX of the
Summary Plan description has not been provided to Plaintiff.
He never received benefits from that Plan. Because Plaintiff
was unfamiliar with the EYM King of Kansas, LLC Employee
Injury Benefit Plan and its Summary Plan Description,
Plaintiff's counsel asked Defendants' counsel to
provide copies of these documents. In response to this
request, Defendants' counsel provided three separate
documents: (1) “Synopsis of Coverage Accidental Medical
and Accidental Death & Dismemberment Benefit”
statement issued to EYM King, LP;(2) “Group Policy
Providing Accident & Health Benefits
Non-Participating” issued to EYM King,
and (3) a second “Group Policy Providing Accident &
Health Benefits Non-Participating” issued to EYM King,
None of these documents are the EYM King of Kansas, LLC
Employee Injury Benefit Plan or the Summary Plan Description
for the EYM King of Kansas, LLC Employee Injury Benefit Plan.
None of these documents contain arbitration procedures that
could be incorporated by reference into the Arbitration
Agreement. When Plaintiff's counsel asked Defendants'
counsel for the specifically referenced and incorporated
agreements, Defendants' counsel responded: “the
plans I sent you are the ones that are in existence,
regardless of how it may have been referred to in the
31 of the Handbook, after the eighteen separate policies and
procedures, is an Acknowledgement of Receipt of Hourly
Management Policies and Procedures, which contains another
signature block. It states that “By my signature below,
I acknowledge that I have received, read and understand the
Hourly Management Policies and Procedures, have been given
the opportunity to ask questions, have received
clarification, and understand for the following contents,
” the first of which is the Arbitration Agreement,
which includes an itemized list of the sections included in
that agreement. It then states on page 33:
I understand that EYM King of Kansas, LLC.'s policies and
procedures may change from time to time at EYM King of
Kansas, LLC 's sole discretion with or without notice to
me, and that the revised information may supersede, modify,
or eliminate existing policies. I acknowledge that all
changes to the Hourly Management Policies and Procedures will
be binding upon me as of the ...