EY COMMON GROUND DISPUTE RESOLUTION PROGRAM
The Common Ground Dispute Resolution Program, as outlined in this document (the “Program”), is intended to provide a fair, prompt and cost-effective mechanism for resolving disputes. The Program is the sole method for resolving disputes within its coverage. It is not intended to limit or expand substantive claims or remedies that would otherwise be available under law.
II. Coverage of Program
A. Entities and persons covered.
1. “Firm” means Ernst & Young LLP and Ernst & Young US LLP, all of their subsidiaries and affiliates, and any successor entities (together, the “Entities”). It also includes all present and former Partners, Principals, agents and employees of the Entities against whom a claim is asserted for acts or omissions arising out of their duties for an Entity.
2. As an applicant for employment or an employee of the Firm, you and anyone else who may assert a claim belonging to, obtained from or on behalf of, you are bound by the terms and conditions of the Program. You are, and remain, bound by the Program even if you are not hired by the Firm, or are not, or are no longer, employed by the Firm, unless you become a Partner or Principal in the Firm (Partners and Principals of the Firm are covered by a different dispute resolution program).
3. This program amendment amends and supersedes all prior versions of the Program and is effective April 1, 2020.
B. Disputes covered.
1. Except as specified in the next subsection, all claims, controversies or other disputes between the Firm and you that could otherwise be resolved by a court (“Covered Disputes”) shall be resolved through the Program. Both the Firm and you give up any right to resolve any Covered Dispute through any other means. Neither the Firm nor you shall be able to sue in court in connection with a Covered Dispute.
2. Covered Disputes include, but are not limited to:
a. Claims based on federal statutes, such as Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the Equal Pay Act, the Rehabilitation Act of 1973, the Family and Medical Leave Act, the Employee Retirement Income Security Act, and the Worker Adjustment and Retraining Notification Act, all as have been or may be amended.
b. Claims based on state and city statutes, regulations and local ordinances, including state, city and local anti-discrimination laws.
c. Claims based on common law theories, such as tort and contract.
d. Claims concerning wages, salary and incentive compensation programs, except as provided in Paragraph C below.
e. Claims relating to an employee benefit plan of the Firm, subject only to the prior satisfaction of any requirement for exhaustion of remedies under applicable plan documents.
f. Claims concerning application, interpretation and enforcement of the Program. All Covered Disputes, whether or not listed here, must be resolved through the Program.
C. Disputes not covered.
1. The following types of claims are not Covered Disputes:
a. A claim solely for temporary, preliminary or interim injunctive relief, including a claim for such relief relating to the period before the Arbitrator (as defined below) is selected, including temporary restraining orders or preliminary injunctions.
b. Statutory claims for workers' compensation or unemployment insurance.
c. Administrative charges as described in Section V.D.1. (Administrative Process).
2. For any claims between you and the Firm that, for any reason, are in a court (e.g., claims that are not Covered Disputes, claims where a court has declined to require dispute resolution under this Program), the parties agree to waive a trial by jury and to authorize the judge in the court to resolve the claim.
III. Phase I — Mediation
A. Definition. If a Covered Dispute arises, the parties are required to try to resolve the Covered Dispute through mediation as set forth below.
B. Provider. The Party initiating Phase I shall choose one of the following dispute resolution organizations as the Provider for Phase I. If the initiating Party does not choose a Provider within 10 days of Phase I being started, the other Party may choose the Provider.
1. The American Arbitration Association (“AAA”)
2. JAMS or
3. The CPR International Institute for Conflict Prevention and Resolution (“CPR”)
C. Initiation. A party may start Phase I by giving the other party notice in writing in accordance with Section V.C. of the Program. The notice must describe the nature of the claim, a description of the dispute and the persons involved, and the remedy requested. If contemplated by the mediation procedures of the Provider, the Firm will contact the Provider on behalf of the parties for the purpose of initiating mediation.
D. Mediator. The parties may agree on a mediator. If the parties do not agree, a party may request that a mediator be appointed by the Provider; however, any mediator appointed must be acceptable to each party and must confirm in writing that he or she is not, and will not become during the term of the mediation, an employee, partner, executive, officer, director or substantial equity owner of any Ernst & Young audit client. The mediator will help the parties attempt to resolve the Covered Dispute by agreement.
E. Mediation Rules. The mediation will be conducted in accordance with the Program and the relevant mediation rules of the Provider as in effect on the date that Phase I is initiated. If the Provider is AAA, the AAA’s employment mediation procedures will be used in conducting the mediation. The AAA procedures may be viewed here. If the Provider is JAMS, the mediation will be conducted as specified by the mediator. If the provider is CPR, CPR’s employment mediation procedures will be used in conducting the mediation. The CPR procedures may be viewed here. Notwithstanding the foregoing, if there is any conflict between the Provider’s rules and the Program, the Program will take precedence.
F. Attorney Representation. Either party may choose to be represented by a lawyer in the mediation or may choose not to use a lawyer.
G. Venue. The venue of the mediation will be the county or city nearest to where the employee’s primary place of employment with the Firm is or was located, or, with respect to applicants, the county or city in which there is a Firm office nearest to the applicant’s primary residence at the time the mediation is initiated, unless the parties agree otherwise. For the avoidance of doubt, the venue of the mediation must, in all events, be in the United States.
H. Fees and Expenses of Mediation. For Phase I, you will be responsible for paying the lesser of
(i) the fee specified by the Provider or (ii) an amount equal to the fee that you would have paid to a court to file a lawsuit asserting the same claim in the court of general jurisdiction in the venue of the mediation (the “Court Equivalent Fee”). The Firm will pay any other fees and expenses charged by the Provider or the mediator. You may contribute a greater portion if you so choose, up to half of the total.
I. Attorneys’ Fees. Each party shall be responsible for the party’s own attorneys’ fees and related expenses associated with Phase I.
J. Termination of Phase I. Phase I shall end 90 days after it is initiated, whether or not the Covered Dispute has been resolved, unless the parties agree otherwise in writing. Upon the initiation of a mediation under the Program, the applicable statute of limitations shall be tolled during Phase I up to a maximum of 90 days, unless the parties agree otherwise in writing.
IV. Phase II — Arbitration
A. Definition. If a Covered Dispute is not resolved in Phase I, either party may choose to proceed to binding arbitration, as provided below.
B. Phase I Default. If a party files a lawsuit for a Covered Dispute in court in violation of the terms of the Program, the other party may choose to proceed directly to Phase II or to seek an order requiring the party who filed the lawsuit to satisfy the requirements of the Program.
C. Provider. The Provider for Phase II shall be the initiating Party’s choice of AAA, JAMS or CPR. It need not be the same provider used in Phase I. If the initiating Party does not select a Provider within 10 days of Phase II being started, the other Party may choose the Provider.
D. Arbitration Rules. The arbitration will be conducted in accordance with the Program and the relevant arbitration rules of the Provider as in effect on the date Phase II is initiated (“Arbitration Rules”). AAA’s employment arbitration rules may be viewed here, JAM’s employment arbitration rules and procedures here, and CPR’s employment dispute arbitration procedure and NonAdministered Arbitration Rules here. Notwithstanding the foregoing, if there is any conflict between the Arbitration Rules and the Program, the Program will take precedence.
E. Initiation. A party may start Phase II by giving the other party notice in writing in accordance with Section V.C. of the Program.
F. Attorney Representation. Either party may choose to be represented by a lawyer in the arbitration or may choose not to use a lawyer.
G. Number and Selection of Arbitrators.
1. If the total amount claimed, or counterclaimed, is $1 million or less, the arbitration will be conducted by one arbitrator. If the total amount claimed, or counterclaimed, is more than $1 million, the arbitration will be conducted by a panel of three arbitrators. A panel of one arbitrator does not have the authority to enter an award in excess of $1 million; an award in excess of $1 million may be made only if there is a panel of three arbitrators.
2. A single arbitrator shall be selected as provided in the Provider’s Arbitration Rules for employment disputes. A three-arbitrator panel shall be selected as follows: each party shall select one arbitrator from the list of potential arbitrators providers by the Provider and inform the Provider of the selection. The Provider will invite the party-selected arbitrators to serve without revealing which party had selected which arbitrator. Once appointed, the two party selected arbitrators shall select the third arbitrator from the list of potential arbitrators provided by the Provider. Each party shall have a peremptory challenge(s) to a potential arbitrator on the list provided by the Provider and may assert challenges for cause, in accordance with the Provider’s rules.
3. Regardless of the number and manner of appointment of arbitrators, each arbitrator shall meet the applicable Provider’s requirements for serving in a neutral and unbiased fashion.
4. All party-appointed arbitrators and single arbitrators shall be selected from:
a. For AAA, the Employment Dispute Resolution Roster, or an equivalent list if such list is unavailable
b. For JAMS, a list of potential arbitrators to be provided to the parties by the Provider or
c. For CPR, a list of potential arbitrators to be provided to the parties by the Provider
5. No person may serve as an arbitrator unless that person is not, and will not become during the term of the arbitration, an employee, partner, executive, officer, director or substantial equity owner of any audit client of Ernst & Young LLP.
6. The single arbitrator or the panel of three arbitrators, as the case may be, is referred to below as the “Arbitrator.”
H. Arbitrator Jurisdiction. Any issue about whether a claim, controversy or dispute is subject to arbitration, or about how the terms and conditions of the Program should be interpreted or whether they are binding on the parties, will be decided by the Arbitrator.
I. Venue. The venue of the arbitration will be, and the hearing, if any, will be conducted in, the county or city where the employee’s primary place of employment is or was located, or, with respect to applicants, the county or city in which there is a Firm office nearest to the applicant’s primary residence at the time the demand for arbitration is filed, unless the parties agree otherwise. For the avoidance of doubt, the venue of the arbitration must in all events be in the United States.
J. Law Applicable to Arbitration. In deciding a Covered Dispute, the Arbitrator will apply the substantive law, including burdens of proof, that would be applied by a court in the venue of the arbitration, except that Delaware law governs the formation of the parties’ agreement under the Program. The Arbitrator may grant any relief that could be granted by such a court, but will have no power to grant any other relief. Nothing in the Program will limit or expand substantive claims or remedies that would otherwise be available under law.
K. Separate Proceedings.
1. If there is more than one Covered Dispute between the Firm and you, all such Covered Disputes shall be heard in a single proceeding.
2. Covered Disputes pertaining to different persons asserting claims under this Program will be heard in separate proceedings, even if the claims are substantially similar. This means that, to the maximum extent permitted by law, you and the Firm waive any right to participate in any class, collective or representative proceeding pertaining to a Covered Dispute.
L. Discovery. Consistent with the expedited nature of arbitration and the needs of the parties, each party may obtain discovery relevant to the Covered Dispute as follows:
1. Each party may obtain reasonable discovery of documentary evidence.
2. Each party may take the deposition of (i) three individuals of the party’s choosing for no more than seven hours each and (ii) any expert witness designated by the other party.
3. The Arbitrator shall permit additional discovery upon a showing of reasonable need, but shall protect the parties against discovery that is unduly burdensome.
4. The Arbitrator will issue subpoenas to third parties for such discovery on the reasonable request of a party, if permitted by law.
M. Witnesses. The parties shall exchange witness lists at least 10 days prior to any hearing. A party may not present a witness at a hearing if the name of the witness has not been provided to the opposing party in accordance with this rule.
N. Summary Adjudication. If, after giving the parties due opportunity to comment on the matter, the Arbitrator determines that all or part of a party’s claim fails to state a legal claim or that there is no genuine issue of fact as to all or part of a party’s claim, the Arbitrator shall have the authority to dismiss the claim or relevant portion thereof, or grant summary judgment for any part thereon, as appropriate and without further proceedings.
O. Conduct of Hearing. At an arbitration hearing, the parties shall have the right to present proof through testimony and documentary evidence, and to cross-examine witnesses who testify at the hearing.
P. Fees and Expenses. Fees and expenses of the arbitration will be handled as follows:
1. Fees and expenses of Arbitration. The Firm will pay all fees and costs charged by the Provider or Arbitrator, except that, if you did not pay any fees in connection with Phase I, you will be required to pay the fees you otherwise would have been required to pay in Phase I. You may contribute a greater portion if you so choose, up to half.
2. Party attorney fees and other expenses. Each party will be responsible for the party’s own attorneys’ fees and related expenses, but the Arbitrator will have the authority to provide for reimbursement of a party’s attorneys’ fees, in whole or part, to the extent permitted under applicable law, as a part of a final award.
Q. Award. The Arbitrator shall render an award and written opinion stating the basis for the award. The Arbitrator is expected to issue the award and opinion no later than 30 days from the date the arbitration hearing concludes or post-hearing briefs (if requested) are received, whichever is later, but a failure of the Arbitrator to meet this or any other deadline shall not affect the validity of the arbitration and award. The opinion shall set forth the factual and legal basis for the award and shall include a summary of the issues, including the nature of the dispute, the relief requested and awarded, a statement of any other issues resolved and a statement regarding the disposition of any statutory claims. An award shall be final and binding on the parties to the fullest extent permitted by law. Judgment on any award may be entered and enforced in any court of competent jurisdiction.
V. Other Matters
A. Confidentiality. All aspects of Phase I and Phase II, including any award made, shall be confidential to the maximum extent permitted by law, except to the extent that disclosure is required by applicable professional standards or is necessary in a later proceeding between the parties.
B. At-Will Employment. The Program does not change the at-will status of employees and does not create any contract between you and the Firm, other than as to those matters expressly addressed in the Program.
C. Notice. Any notice required to be given to you shall be directed to your last known address and email address as reflected in the records of the Firm or, if you are represented by a lawyer, your legal representative. Any notice required to be given to the Firm shall be directed to the General Counsel’s Office at the Firm’s principal location in New York City, to the attention of Andrea Stempel, Associate General Counsel, or her successor or designee.
D. Administrative Process.
1. The Program does not affect your right to file a charge with, make a complaint to, participate in an investigation by or bring any matter to the attention of (“File a Charge”) the U.S. Equal Employment Opportunity Commission, the National Labor Relations Board, a state or local discrimination agency, or any other administrative body, although you waive the right to file or pursue any lawsuit or court action against the Firm as set forth in this Program.
2. Notwithstanding the Filing of a Charge, you may seek monetary relief only with respect to a Covered Dispute through the Program, except as otherwise required by applicable law with respect to administrative charges.
E. Termination or Amendment.
1. The Firm may propose termination or amendment of the Program by providing electronic notice to you, including by posting changes on the Firm’s intranet or through MyPeopleLink (or any system that replaces it). You indicate your agreement to the proposed amendment or termination, and such proposed change becomes effective as to you, by commencing employment or, if currently employed, continuing your employment with the Firm for a period of 30 days after notice is provided.
2. Termination or amendment will not affect a Covered Dispute as to which either Phase I or Phase II had already been initiated when the termination or amendment was proposed.
3. If a proposed termination or amendment is determined not to be effective in whole or part for any reason, including lack of sufficient notice, lack of agreement, invalidity of a Program provision or otherwise, the Program as it existed at the time of the proposed termination or amendment shall remain in effect to the extent that the proposed termination or amendment is determined not to be effective.
F. Due Process and Severability.
1. The Program is intended to be fair to both sides and to provide you with access at an affordable cost. If it is determined that all or part of the Program is unenforceable for reasons pertaining to the fairness of the procedures or the cost, the Firm shall have the option to modify the Program as appropriate to address the concern.
2. If any portion of the Program is held to be invalid or unenforceable, or if any portion of the Program would, if effective, violate applicable law, that portion of the program shall be void and of no effect, but the remainder of the Program shall remain in full force and effect.
G. Choice of Law Governing Program. The Program is formed and enforceable under Delaware law without regard to its conflicts of laws principles. The Program, these procedures and any arbitration award that may result from them shall be governed by the Federal Arbitration Act (“FAA”). However, if the FAA is held not to apply for any reason, the Program, these procedures and any arbitration award shall be governed by the Delaware Uniform Arbitration Act, including judicial interpretations.
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