[Cite as Jones v. Carrols, L.L.C., 2019-Ohio-211.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

ERICK JONES                                               C.A. No.   28918

        Appellant

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
CARROLS, LLC, dba BURGER KING, et al.                     COURT OF COMMON PLEAS
                                                          COUNTY OF SUMMIT, OHIO
        Appellees                                         CASE No.   CV-2013-15-5850

                                  DECISION AND JOURNAL ENTRY

Dated: January 23, 2019



        TEODOSIO, Judge.

        {¶1}     Erick Jones appeals the judgment of the Summit County Court of Common Pleas

granting Carrols LLC’s second renewed motion to compel arbitration and dismissing the case.

We affirm.

                                                     I.

        {¶2}     This case comes before this Court for the third time, and involves the

enforceability of an arbitration agreement relating to Mr. Jones’ claims against his former

employer, Carrols LLC d/b/a Burger King (“Carrols”), and three of his former supervisors and/or

managers (collectively, “Defendants”). We previously set forth the factual background in Jones

v. Carrols, L.L.C. (“Jones I”), 9th Dist. Summit No. 27385, 2015-Ohio-2250, ¶ 2-3:

        In 2004, Mr. Jones began working at a Burger King location owned by Carrols,
        and he was eventually promoted to shift supervisor and took on certain
        managerial duties. In July 2006, Carrols implemented a Mandatory Arbitration
        Policy (“MAP”) that required employees to arbitrate nearly all claims associated
        with their employment. Although Carrols required all new employees to sign a
        copy of the MAP, it did not require current employees to do so. Instead, Carrols
                                                   2


        distributed a memorandum to franchise managers to be disseminated to the
        employees. The memorandum stated that, by reporting to work on or after
        August 1, 2006, the employee was agreeing to the MAP. Carrols also required
        managers to hang a poster containing the MAP in the office.

        Mr. Jones was fired in December 2012. On December 16, 2013, Mr. Jones filed a
        complaint against Defendants, alleging racial and age discrimination, intentional
        infliction of emotional distress, invasion of privacy, and negligent supervision.
        Defendants moved to compel arbitration pursuant to the MAP, and Mr. Jones
        opposed their motion, arguing that he had never agreed to the MAP and had been
        unaware of its existence.

        {¶3}    We further set forth the factual background and procedural history of the case in

Jones v. Carrols, LLC (“Jones II”), 9th Dist. Summit No. 28406, 2017-Ohio-7150, ¶ 2-4:

        Mr. Jones also argued that he did not knowingly and voluntarily waive his right to
        a jury trial, that the terms of the MAP were procedurally and substantively
        unconscionable, and that the MAP was overly broad and against public policy.

        The trial court granted Defendants’ motion to compel arbitration, finding that
        Carrols took “reasonable steps” to inform Mr. Jones of the MAP.             It also
        concluded, without any explanation or analysis, that the MAP was neither
        procedurally or substantively unconscionable. Mr. Jones appealed the trial court’s
        decision to this Court, raising five assignments of error for our review. We
        reversed and remanded the matter on the basis that the trial court did not make a
        determination as to whether Mr. Jones knew about the MAP, noting that “a party
        cannot assent to a term of which the party is unaware.” [Jones I] at ¶ 8, 12. We
        declined to address his remaining assignments of error on the basis that they were
        not ripe for review. Id. at ¶ 13.

        On remand, the trial court determined that Mr. Jones did, in fact, have knowledge
        of the MAP. In doing so, it analyzed the evidence presented at the hearing and
        applied the applicable law. It also noted that it had previously determined that the
        MAP was lawful, that it was not unconscionable, and that the subject matter of
        Mr. Jones’ claims fell within its scope. It, therefore, granted Defendants’ renewed
        motion to compel arbitration and dismissed Mr. Jones’ complaint.

Mr. Jones appealed a second time to this Court, and again we reversed and remanded to the trial

court for further analysis by the trial court. Jones II at ¶ 8.

        {¶4}    Upon remand, the trial court granted Defendants’ second renewed motion to

compel arbitration and dismissed the case, concluding that: (1) the MAP was neither
                                                  3


substantively nor procedurally unconscionable; (2) the MAP was not against public policy; (3)

the MAP was valid and enforceable under Ohio law; (4) Mr. Jones’ claims fell within the scope

of the MAP; and (5) Mr. Jones waived his right to a jury trial by agreeing to be bound by the

MAP. Mr. Jones now appeals, raising five assignments of error.

                                                 II.

                                ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ MOTION TO
       COMPEL ARBITRATION AND DISMISS THE CASE BECAUSE THE
       ARBITRATION AGREEMENT IS UNCONSCIONABLE.

       {¶5}    In his first assignment of error, Mr. Jones argues the trial court erred in granting

the motion to compel arbitration because the arbitration agreement was both procedurally and

substantively unconscionable. We disagree.

       {¶6}    “The issue of unconscionability is a question of law.” Eagle v. Fred Martin Motor

Co., 157 Ohio App.3d 150, 2004-Ohio-829, ¶ 12 (9th Dist.). When an appellate court is

presented with purely legal questions, the standard of review to be applied is de novo. Akron-

Canton Waste Oil, Inc. v. Safety-Kleen Oil Servs., Inc., 81 Ohio App.3d 591, 602 (9th

Dist.1992).

       {¶7}    “Ohio’s public policy encourages arbitration as a method to settle disputes.”

Eagle at ¶ 14. “Additionally, a presumption arises favoring arbitration when the claim in dispute

falls within the scope of the arbitration provision.” Id. A court should therefore give effect to an

arbitration provision in a contract unless the subject arbitration clause is not susceptible to an

interpretation that covers the asserted dispute. Id.

       {¶8}    Although     some    contracts   may ostensibly     provide    for   arbitration,   an

unconscionable provision is unenforceable. Lavelle v. Henderson, 9th Dist. Summit No. 27921,
                                                 4


2016-Ohio-5313, ¶ 9. “Unconscionability consists of two separate concepts: (1) unfair and

unreasonable contract terms, i.e., substantive unconscionability; and (2) ‘an absence of

meaningful choice on the part of one of the parties[,]’ i.e., procedural unconscionability.” Id.,

quoting Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, ¶ 34. “A

party seeking to invalidate an arbitration clause on grounds of unconscionability must establish

that the provision is both procedurally and substantively unconscionable.” Ball v. Ohio State

Home Servs., 168 Ohio App.3d 622, 2006-Ohio-4464, ¶ 6 (9th Dist.).

       {¶9}    “Procedural unconscionability concerns the formation of the agreement, and

occurs where no voluntary meeting of the minds was possible.” Porpora v. Gatliff Bldg. Co.,

160 Ohio App.3d 843, 2005-Ohio-2410, ¶ 7 (9th Dist.).              When determining procedural

unconscionability, a reviewing court considers “factors bearing on the relative bargaining

position of the parties, including age, education, intelligence, business acumen, experience in

similar transactions, whether the terms were explained to the weaker party, and who drafted the

contract.” Eagle at ¶ 31. Generally, no one factor alone determines whether a contract is

procedurally unconscionable. Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054, ¶

29. Instead, a court must consider the totality of the circumstances. Id. at ¶ 30.

       {¶10} “Substantive unconscionability encompasses those factors which concern the

contract terms themselves, and the issue of whether these terms are commercially reasonable.”

Eagle at ¶ 31.     “Contract terms are unconscionable if they are unfair and commercially

unreasonable.” Porpora at ¶ 8. “Arbitration clauses are unconscionable where the ‘clauses

involved are so one-sided as to oppress or unfairly surprise [a] party.’” Eagle at ¶ 32, quoting

Neubrander v. Dean Witter Reynolds, Inc., 81 Ohio App.3d 308, 311-12 (9th Dist.1992), quoting

Black’s Law Dictionary 1367 (5th Ed.Rev.1979). “[A]n unconscionable arbitration clause exists
                                                5


‘[when with respect to the arbitration clause itself] one party has been misled as to the “basis of

the bargain,” where a severe imbalance in bargaining power exists, or where specific contractual

terms are outrageous.’” Id., quoting Orlett v. Suburban Propane, 54 Ohio App.3d 127, 129 (12th

Dist.1989).

       {¶11} Mr. Jones makes a number of arguments with regard to substantive

unconscionability. He first contends that the agreement is overbroad because arbitration “would

be resolving disputes unrelated to employment.” “To determine whether the claims asserted in

the complaint fall within the scope of an arbitration clause, the [c]ourt must ‘classify the

particular clause as either broad or narrow.’” Academy of Medicine v. Aetna Health, Inc., 108

Ohio St.3d 185, 2006-Ohio-657, ¶ 18, quoting Louis Dreyfus Negoce S.A. v. Blystad Shipping &

Trading Inc., 252 F.3d 218, 224 (2d Cir.2001). “An arbitration clause that contains the phrase

‘any claim or controversy arising out of or relating to the agreement’ is considered ‘the paradigm

of a broad clause.’” Id., quoting Collins & Aikman Prods. Co. v. Bldg. Sys. Inc., 58 F.3d 16, 20

(2d Cir.1995). While it is well-established that such language constitutes a broad clause, Mr.

Jones offers no authority for his theory that such language should be construed as overbroad.

       {¶12} Mr. Jones next argues that the agreement “incorporates terms that are so unfair to

one party the enforcement would be unreasonable.” In support of this theory, Mr. Jones points to

the language of the agreement stating that claims subject to arbitration include “personal or

emotional injury to you or your family * * *.” Mr. Jones contends such language means that his

wife or minor child would have to arbitrate any claims they had against Carrols. The agreement,

however, is only between Carrols and Mr. Jones, and as such, no language in the agreement can

bind other parties to arbitrate. Likewise, there is no other signatory to the agreement. This

language would only be enforceable to the extent that Mr. Jones could bring a claim for his own
                                                 6


damages that were a result of an underlying injury to a family member. The language is also not

given in isolation, but in the context of an agreement that, as a whole, references only the

obligations of the employee and Carrols. To construe this language as Mr. Jones proposes, i.e.,

that it would be binding upon third-party family members, would not simply be unreasonable,

but unenforceable.

       {¶13} Mr. Jones further argues that the terms of the arbitration agreement are unfair and

one-sided. In support of this argument, Mr. Jones points to the language of the agreement

stating: “You also understand that the parties reserve the right to go to court if they are faced

with the risk of irreparable harm, such as the disclosure of confidential information.” Mr. Jones

contends this language exempts claims more likely to be brought by Carrols, and is therefore

unbalanced.

       {¶14} In support of his argument, Mr. Jones directs us to Post v. Procare Automotive

Serv. Solutions, 8th Dist. Cuyahoga No. 87646, 2007-Ohio-2106, contending that his agreement

is of the same one-sided variety found to be unconscionable in Post. The provision at issue in

Post, however, is substantially different than the provision in the agreement between Mr. Jones

and Carrols. In Post, the provision states that nothing in the arbitration agreement at issue “shall

be construed so as to deny Employer’s right and power to seek and obtain injunctive relief in a

court of equity for any breach or threatened breach of Employee of any of his covenants * * *.”

Id. at ¶ 4. Unlike the provision in the MAP, the Post provision only creates an exception for the

employer, and not for the employee, and it is thus inherently one-sided. The provision in the

MAP applies equally to both Mr. Jones and Carrols, and although Mr. Jones states that the

employer is more likely to bring a claim of the variety exempted, he offers no evidence that

Carrols is more likely to face irreparable harm than he himself.
                                                7


       {¶15} Mr. Jones next argues that the terms of the arbitration agreement are misleading

and ambiguous. Specifically, he contends that a MAP poster was ambiguous and misleading in

stating “[a]rbitration is similar to a lawsuit” and that “it is quicker and less expensive for both

sides.” Mr. Jones directs us to Olah v. Ganley Chevrolet, Inc., where the Eighth District Court of

Appeal examined language in an arbitration agreement which provided: “ARBITRATION

PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN

COURT.” (Emphasis sic.) 8th Dist. Cuyahoga No. 86132, 2006-Ohio-694, ¶ 20. The Eighth

District found the language to be ambiguous, and it was one of several factors that led the court

to conclude that the arbitration agreement was substantively unconscionable.

       {¶16} With regard to the MAP poster, such a simplified description of the arbitration

process is incomplete by nature of its brevity and broad generalities. Importantly, however, the

language that Mr. Jones refers to from the poster was not part of the arbitration agreement itself.

Therefore it does not lend itself to making the actual agreement ambiguous and misleading. Mr.

Jones also notes other language from promotional materials that he believes is misleading;

however, once again, because the language is not from the agreement itself, we cannot conclude

that such language makes the actual agreement substantively unconscionable.

       {¶17} Mr. Jones further argues the language used in the employee handbook to describe

the MAP is ambiguous, namely the statement that “a formal grievance procedure is available for

you whenever you wish. An Arbitration procedure is also available. Carrols urges you to take

advantage of either procedure if the need arises.” Mr. Jones contends that this language is

ambiguous because it is “permissive not imperative suggesting the employee has the option of

requesting arbitration rather than going to court.” We find no ambiguity in these statements, nor

are they part of the agreement itself.
                                                 8


       {¶18} Mr. Jones next directs us to a MAP memorandum that states “Under MAP,

employment related disputes that cannot be resolved internally will proceed to arbitration rather

than in a lawsuit.” He argues this language is problematic because the MAP itself provides that

employees “are not required to use [the in-house grievance procedure] program * * *.” We do

not find this language to be ambiguous or misleading.

       {¶19} Mr. Jones argues that the potential costs of arbitration render the agreement

unconscionable; however he fails to provide any evidence of those costs. Mr. Jones also states

that the MAP refers the employee to the JAMS website to ascertain the costs of arbitration, but

does not provide a rationale as to why this would make the arbitration clause substantively

unconscionable.

       {¶20} Finally, Mr. Jones argues the agreement does not “provide for the efficiency and

judicial economy demanded of arbitration * * *.” He bases this argument on the fact that he

filed his lawsuit four years ago, that it has involved many hours of judicial and attorney time, and

has incurred thousands of dollars in fees. He contends that he could be forced to arbitrate some

of his claims while at the same time litigating other claims. None of these facts, however, are

evidence of the substantive unconscionability of the terms of the agreement. Moreover, Mr.

Jones initiated these proceedings, and inherent in the litigation process is a risk that more time

and money will be expended than one had anticipated. We also fail to see how the arbitration

process can be disparaged as being inefficient and uneconomical when arbitration has not yet

been initiated.

       {¶21} We conclude that Mr. Jones has failed to meet his burden of proving that the

arbitration agreement was substantively unconscionable. As we have noted, “[a] party seeking to

invalidate an arbitration clause on grounds of unconscionability must establish that the provision
                                                9


is both procedurally and substantively unconscionable.” Ball at ¶ 6. Having determined that Mr.

Jones has failed to establish the substantive unconscionability of the arbitration agreement, we

decline to further examine whether the agreement is procedurally unconscionable.

       {¶22} Mr. Jones’ first assignment of error is overruled.

                               ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ MOTION TO
       COMPEL ARBITRATION AND DISMISS THE CASE BECAUSE THE
       ARBITRATION AGREEMENT IS AGAINST PUBLIC POLICY.

       {¶23} In his second assignment of error, Mr. Jones argues the trial court erred in

granting the motion to compel arbitration because the agreement was against public policy due to

the fact that it contained a waiver of actions brought on a “class or aggregate basis.” We

disagree.

       {¶24} “A refusal to enforce a contract on the grounds of public policy may be

distinguished from a finding of unconscionability. Rather than focus on the relationship between

the parties and the effect of the agreement upon them, public policy analysis requires the court to

consider the impact of such arrangements upon society as a whole.” Eagle v. Fred Martin Motor

Co., 157 Ohio App.3d 150, 2004-Ohio-829, ¶ 63 (9th Dist.). “A contract injurious to the

interests of the state will not be enforced.” Id., citing King v. King, 63 Ohio St. 363, 372

(1900). However, “[a]greements voluntarily and fairly made between competent persons are

usually valid and enforceable, and the principle that agreements opposed to public policy are not

enforceable should be applied cautiously and only in circumstances patently within the reasons

on which that doctrine rests.” Gugle v. Loeser, 143 Ohio St. 362 (1944), paragraph one of the

syllabus.
                                                10


       {¶25} The arbitration agreement provides: “[t]o the extent permitted by the [JAMS]

Procedural Standards, you agree that any action you bring shall be on an individual and not class

or aggregate basis and that you must join all known claims together in one arbitration.” Mr.

Jones contends that such a waiver of class actions is against public policy because it violates the

Fair Labor Standards Act and the National Labor Relations Act (“NLRA”), and directs us to

Eagle v. Fred Martin Motor Co. in support of his argument.

       {¶26} We first note that our decision in Eagle is distinguishable. In Eagle, we found an

arbitration clause that eliminated a consumer’s ability to proceed through a class action invaded

the policy considerations of the Consumer Sales Practices Act and was therefore against public

policy. Eagle at ¶ 63. The case currently before us for review is not a consumer action and does

not implicate the Consumer Sales Practices Act.

       {¶27} Mr. Jones also directs us to Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th

Cir.2016), and Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir.2016), both being cases that

focused upon arbitration agreements containing provisions whereby employees waived the right

to pursue a concerted, or collective, action. Both cases determined that such a provision violated

the NLRA. However, during the pendency of this appeal, the Supreme Court of the United

States issued its decision in Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612 (May 21, 2018), which

reversed the 7th and 9th Circuits’ decisions in Lewis and Morris. The Supreme Court held that

arbitration agreements requiring individualized arbitration instead of class or collective

proceedings did not violate the NLRA, but rather, that the Arbitration Act required enforcement

of the agreements.    Id. at 1616.    We therefore conclude that the arbitration agreement’s

requirement that claims shall be on an individual and not class or aggregate basis does not violate

public policy.
                                               11


        {¶28} Mr. Jones’ second assignment of error is overruled.

                              ASSIGNMENT OF ERROR THREE

        THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ MOTION TO
        COMPEL ARBITRATION AND DISMISS THE CASE BECAUSE THE MAP
        PROGRAM DID NOT CREATE A VALID ENFORECEABLE ARBITRATION
        AGREEMENT UNDER OHIO LAW.

        {¶29} In his third assignment of error, Mr. Jones argues the trial court erred in granting

the motion to compel arbitration because the arbitration agreement was not supported by

adequate consideration and was an illusory contract. We disagree.

        {¶30} Mr. Jones argues that at the time he was hired by Carrols in 2005, an arbitration

agreement was in effect, and that an employee’s assent to arbitration was indicated by an

employee’s signature on the agreement. Mr. Jones states that he did not agree to the arbitration

agreement and did not sign such an agreement. He further states that during his employment,

Carrols made material changes to the terms of the arbitration agreement, with assent to the

agreement being construed from an employee choosing to continue to work for Carrols after

August 1, 2006.     Mr. Jones contends there was no consideration for this new arbitration

agreement.

        {¶31} We will assume the accuracy of Mr. Jones’ recitation of facts, solely for the

purposes of considering his argument (and with the understanding that Carrols disputes their

accuracy). As such, Mr. Jones contends he had not entered into an arbitration agreement at the

time of his hiring by Carrols. By continuing to work for Carrols after the August 1, 2006,

deadline, Mr. Jones would have assented to an arbitration agreement with Carrols for the first

time.

        {¶32} “The Ohio Supreme Court has held that giving up a right to trial, in addition to the

corresponding rights of that judicial process, is consideration.”   Skerlec v. Ganley Chevrolet,
                                                12


Inc., 8th Dist. Cuyahoga No. 98247, 2012-Ohio-5748, ¶ 9, citing Hayes v. Oakridge Home, 122

Ohio St.3d 63, 2009-Ohio-2054, ¶ 42-43. “No consideration is required above and beyond the

mutual agreement to arbitrate.” Id. at ¶ 13, citing Corl v. Thomas & King, 10th Dist. Franklin

No. 05AP-1128, 2006-Ohio-2956, ¶ 20, citing Dantz v. Apple Ohio LLC, 277 F.Supp.2d 794

(N.D.Ohio 2003). The arbitration agreement under review specifically provided that both Mr.

Jones, as the employee, and Carrols both agreed to arbitrate all disputes arising out of or relating

to his employment. Because Carrols agreed to be bound by the agreement and give up its right

to trial, consideration was given.

       {¶33} Mr. Jones also argues that the arbitration agreement was unenforceable because it

was an illusory contract. An arbitration agreement that permits an employer to unilaterally

amend or terminate an arbitration agreement without notice renders the agreement illusory.

Redmond v. Big Sandy Furniture, Inc., 4th Dist. Lawrence No. 08CA12, 2008-Ohio-6084, ¶ 14.

Mr. Jones directs us to language in the arbitration agreement that provides:

       Carrols also provides an in-house grievance procedure explained to you during
       your orientation. Carrols encourages employees to use that program to resolve
       disputes. While Carrols reserves the right to change, alter, or eliminate that
       program, and you are not required to use that program, Carrols believes that the
       in-house grievance procedure is an effective means of resolving disputes.

This language, however, does not apply to the arbitration agreement itself, nor does the

arbitration agreement otherwise provide for the unilateral amendment or termination of the

agreement without notice.

       {¶34} Mr. Jones further directs us to language in the employee handbook that states that

Carrols “reserves the right to change, delete or add any of the provisions at its sole discretion.”

This language does not reference the arbitration agreement, and Mr. Jones has provided us with

no evidence that it would apply to the arbitration agreement entered into on August 1, 2006. Mr.
                                                 13


Jones also points to language in the JAMS rules that provides that they may amend their rules

without notice. This is not language that alters the arbitration agreement itself and does not

provide for unilateral change to the agreement by Carrols. We therefore conclude that Mr. Jones

has failed to show that the arbitration agreement was an illusory contract.

       {¶35} Mr. Jones’ third assignment of error is overruled.

                               ASSIGNMENT OF ERROR FOUR

       THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ MOTION TO
       COMPEL ARBITRATION AND DISMISS THE CASE BECAUSE ERICK
       JONES’ CLAIMS DO NOT FALL WITHIN THE SCOPE OF THE
       ARBITRATION AGREEMENT.

       {¶36} In his fourth assignment of error, Mr. Jones argues the trial court erred in granting

the motion to compel arbitration because his claims for defamation, false light invasion of

privacy, and intentional infliction of emotional distress occurred after he was terminated and are

not subject to arbitration. Mr. Jones further argues that his claim alleging a violation of Article

II, Chapter 34, of the Ohio Constitution is not subject to arbitration. We disagree.

       {¶37} “The question of whether an arbitration provision is applicable presents a matter

of contract interpretation.” Varga v. Drees Co., 9th Dist. Lorain No. 13CA010385, 2014-Ohio-

643, ¶ 6. Thus, “[t]he arbitrability of a claim is a question of law, and we review the arbitrability

of a claim de novo.” Murray v. David Moore Builders, Inc., 177 Ohio App.3d 62, 2008-Ohio-

2960, ¶ 7 (9th Dist.), quoting McManus v. Eicher, 2d Dist. Greene No. 2003-CA-30, 2003-Ohio-

6669, ¶ 11. “[A]n order to arbitrate the particular grievance should not be denied unless it may

be said with positive assurance that the arbitration clause is not susceptible of an interpretation

that covers the asserted dispute.” Biondi v. Oregon Homes, LLC, 9th Dist. Summit No. 26543,

2013-Ohio-1770, ¶ 9, quoting Academy of Medicine of Cincinnati v. Aetna Health, Inc., 108
                                                14


Ohio St.3d 185, 2006-Ohio-657, ¶ 14. “[A] party cannot be required to submit to arbitration any

dispute which [it] has not agreed so to submit.” Id.

       {¶38} The arbitration agreement provides:

       Under this arbitration program, which is mandatory, Carrols and you agree that
       any and all disputes, claims or controversies for monetary or equitable relief
       arising out of or relating to your employment, even disputes, claims, or
       controversies relating to events occurring outside the scope of your employment
       (“Claims”), shall be arbitrated before JAMS, a national arbitration association,
       and conducted under the then current JAMS rules on employment arbitration.

There is no provision stating that incidents occurring after termination are inherently unrelated to

employment, or that such incidents do not arise out of employment, and Mr. Jones has provided

no support for such a theory. Rather, with regard to the individual defendants named in Mr.

Jones’ complaint, the complaint states that each “at all relevant times was an employee of

Defendant Carrols acting within the scope of [his/her] employment.” Consequently, Mr. Jones’

contention that the claims against the defendants may be stated without reference to the

employment relationship is without merit. Likewise, all facts stated in the complaint in support

of Mr. Jones’ claims arise out of his employment with Carrols, including his termination from

employment and subsequent application for unemployment compensation. We conclude that

Mr. Jones’ has failed to prove that any of his claims fall outside of the scope of the arbitration

agreement.

       {¶39} Mr. Jones further argues that claims for intentional torts are not subject to an

arbitration agreement.    In support of this argument, Mr. Jones directs us to Scaglione v.

Kraftmaid Cabinetry, 11th Dist. Geauga No. 2001-G-2364, 2002-Ohio-6917. However, in a

merit decision without opinion, the Supreme Court of Ohio vacated Scaglione. Scaglione v.

Kraftmaid Cabinetry, 101 Ohio St.3d 1401, 2003-Ohio-7098. Consequently, Scaglione does not

exist as persuasive authority, and additionally, the Supreme Court of Ohio’s decision implies that
                                               15


they disagreed with the Eleventh District’s rationale. See Robbins v. Country Club Ret. Ctr. IV,

Inc., 7th Dist. Belmont No. 04 BE 43, 2005-Ohio-1338, ¶ 50.

       {¶40} Mr. Jones also argues that his claim alleging a violation of Article II, Chapter 34,

of the Ohio Constitution is not a statutory claim, and is not subject to arbitration because

constitutional claims “are not specifically mentioned in the arbitration agreement and thus are

not covered by the agreement.”         Count VII of Mr. Jones’ complaint is captioned as

“VIOLATION OF ARTICLE II, SECTION 34(a) [sic] OF THE OHIO CONSTITUTION AND

[R.C.] 4111.14, et. [sic] seq.” The claim specifically alleges that “[o]n or about October 31,

2013, [Mr. Jones] sent to Defendant Carrols a letter requesting information and documents that

his employer was required to maintain pursuant to Article II, [S]ection 34(a) [sic] of the Ohio

Constitution and the implementing statute, [R.C.] 4111.14 et. [sic] seq.” and that “Carrols never

provided the requested information or documents.”

       {¶41} “In November 2006, Ohio voters approved the Fair Minimum Wage Amendment

to the Ohio Constitution, which establishes a minimum rate that employers must pay their

employees and requires annual adjustments of that amount.” Haight v. Minchak, 146 Ohio St.3d

481, 2016-Ohio-10653, ¶ 6. “Shortly after, the General Assembly enacted Am.Sub.H.B. No. 690

(‘H.B. 690’), 151 Ohio Laws, Part V, 9576, to implement the provisions of Article II, Section

34a.” Id. The synopsis for H.B. 690 states that it is an act to “amend sections 4111.01, 4111.02,

4111.03, 4111.04, 4111.08, 4111.09, and 4111.10 and to enact section 4111.14 of the Revised

Code to implement Section 34a, Article II, of the Constitution of the State of Ohio and to further

amend section 4111.08 of the Revised Code on January 1, 2010, to apply certain record-keeping

provisions only to employers subject to Ohio’s overtime law.”
                                                16


       {¶42} “By agreeing to arbitrate a statutory claim, a party does not forgo the substantive

rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a

judicial, forum.” Weiss v. Voice/Fax Corp., 94 Ohio App.3d 309, 313 (1st Dist.1994), quoting

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985).              In

pertinent part, the arbitration agreement provides: “Claims subject to arbitration shall include,

without limitation, disputes, claims, or controversies relating or referring in any manner, directly

or indirectly, to * * * the Federal Fair Labor Standards Act or similar state statutes * * *.” While

the language of the agreement may not specifically refer to claims falling under Section 34a of

the Ohio Constitution, the agreement does anticipate claims brought under state statutes similar

to the Federal Fair Labor Standards Act.       The purpose of the Ohio Fair Minimum Wage

Amendment, implemented by statute under R.C. 4111.14, is to:

       (1) Ensure that Ohio employees, as defined in division (B)(1) of this section, are
       paid the wage rate required by Section 34a of Article II, Ohio Constitution;

       (2) Ensure that covered Ohio employers maintain certain records that are directly
       related to the enforcement of the wage rate requirements in Section 34a of Article
       II, Ohio Constitution;

       (3) Ensure that Ohio employees who are paid the wage rate required by Section
       34a of Article II, Ohio Constitution may enforce their right to receive that wage
       rate in the manner set forth in Section 34a of Article II, Ohio Constitution; and

       (4) Protect the privacy of Ohio employees’ pay and personal information
       specified in Section 34a of Article II, Ohio Constitution by restricting an
       employee’s access, and access by a person acting on behalf of that employee, to
       the employee’s own pay and personal information.

R.C. 4111.14(A). The statute goes on to provide:

       In accordance with Section 34a of Article II, Ohio Constitution, the terms
       “employer,” “employee,” “employ,” “person,” and “independent contractor” have
       the same meanings as in the “Fair Labor Standards Act of 1938,” 52 Stat. 1060,
       29 U.S.C. 203, as amended. In construing the meaning of these terms, due
       consideration and great weight shall be given to the United States department of
                                                17


       labor’s and federal courts’ interpretations of those terms under the Fair Labor
       Standards Act and its regulations.

R.C. 4111.14(B).

       This reference to the Fair Labor Standards Act highlights the similar purposes of the two

acts, with both providing for a minimum wage (R.C. 4111.02 and 29 USCS 206); overtime pay

(R.C. 4111.03 and 29 USCS 207); and record keeping requirements (R.C. 4111.08 and 29 USCS

211(c)). We therefore conclude that Mr. Jones’ claim brought pursuant to Article II, Section 34a

of the Ohio Constitution and R.C. 4111.14 et seq. is subject to arbitration.

       {¶43} Mr. Jones’ fourth assignment of error is overruled.

                                ASSIGNMENT OF ERROR FIVE

       THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ MOTION TO
       COMPEL ARBITRATION AND DISMISS THE CASE BECAUSE ERICK
       JONES NEVER WAIVED HIS CONSTITUTIONAL RIGHT TO A JURY
       TRIAL ON HIS LEGAL CLAIM.

       {¶44} In his fifth assignment of error, Mr. Jones argues the trial court erred in granting

the motion to compel arbitration because he had never waived his right to a jury trial. We

disagree.

       {¶45} “The waiver of the right to a jury trial is a necessary consequence of agreeing to

arbitration and is not unconscionable.” Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-

Ohio-2054, ¶ 43. Having already concluded the arbitration agreement was not unconscionable

nor otherwise unenforceable, and that Mr. Jones was bound by the agreement, we find no merit

in this argument.

       {¶46} Mr. Jones’ fifth assignment of error is overruled.
                                                18


                                                III.

       {¶47} Mr. Jones’ assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT




SCHAFER, P. J.
CONCURS.
                                                19


CARR, J.
DISSENTING.

       {¶48} I respectfully dissent from the judgment of the majority. I would sustain the first

assignment of error as I would conclude that the arbitration agreement is procedurally and

substantively unconscionable.

       {¶49} “Procedural unconscionability considers the circumstances surrounding the

contracting parties’ bargaining, such as the parties’ age, education, intelligence, business acumen

and experience, * * * who drafted the contract, * * * whether alterations in the printed terms

were possible, [and] whether there were alternative sources of supply for the goods in question.”

(Internal quotations and citations omitted.) Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio

St.3d 352, 2008-Ohio-938, ¶ 44.      Here, undoubtedly, there was a disparity in the bargaining

power between the parties. Carrols drafted the arbitration agreement and was a large entity with

thousands of employees. Mr. Jones was a high school graduate who was supporting a family,

did not understand arbitration, and whose only option to maintain his employment was to agree

to the arbitration agreement. Thus, his situation was not like that of a potential employee looking

for a job who could simply apply somewhere else. Mr. Jones would have to leave a job he

already had and then search for a new one if he were to object to the arbitration agreement.

Thus, I would determine that the arbitration agreement was procedurally unconscionable.

       {¶50} “Substantive unconscionability encompasses those factors that concern the

contract terms themselves[.] Contract terms are [substantively] unconscionable if they are unfair

and commercially unreasonable.” (Internal quotations and citation omitted.) First Natl. Bank of

Pennsylvania v. Nader, 9th Dist. Medina No. 16CA0004-M, 2017-Ohio-1482, ¶ 32. Here, the

arbitration agreement required that Mr. Jones arbitrate “any and all disputes, claims or

controversies for monetary or equitable relief arising out of or relating to [his] employment, even
                                               20


disputes, claims or controversies relating to events occurring outside the scope of [his]

employment[.]” Those claims included “disputes, claims or controversies relating or referring in

any manner, directly or indirectly to: * * * personal or emotional injury to [him] or [his]

family[.]” Thus, it seems Carrols was requiring that Mr. Jones arbitrate far more than disputes

relating to his employment.

       {¶51} The arbitration agreement also states that the claims “shall be arbitrated before

JAMS, a national arbitration association, and conducted under the then current JAMS rules on

employment arbitration.” However, the copy of those rules presented by Carrols, which notably

are effective as of July 15, 2009, state that “JAMS may amend these Rules without notice. The

Rules in effect on the date of the commencement of an Arbitration (as defined in Rule 5) shall

apply to that Arbitration, unless the Parties have agreed upon another version of the Rules.”

Those rules include, inter alia, provisions about how to commence arbitration, arbitrator

selection and replacement, scheduling and location of the hearing, awards, and fees.

Accordingly, it would seem impossible for Mr. Jones to know what rules would apply to him

given that there would be no way to know in advance what rules would be in effect when

arbitration was finally sought. See Arnold v. Burger King, 8th Dist. Cuyahoga No. 101465,

2015-Ohio-4485, ¶ 97.

       {¶52} However, not only would Mr. Jones need to refer to the above mentioned rules to

understand what he was agreeing to in the arbitration agreement, he would also have to refer to

the JAMS Policy on Employment Arbitration Minimum Standards of Procedural Fairness,

which, according to the arbitration agreement, Carrols “will satisfy[.]” The copy of that policy

presented by Carrols, and also effective July 15, 2009, states that “[a]ll remedies that would be

available under the applicable law in a court proceeding * * * must remain available in the
                                                  21


arbitration[]” however, the arbitration agreement itself states that “[t]he arbitrator * * * will limit

your relief to compensation for demonstrated and actual injury to the extent consistent with the

[policy].” Overall, the terms of the arbitration agreement are confusing and require one to

examine multiple documents, at least one of which was subject to change without notice. Thus, I

would likewise determine the arbitration agreement was substantively unconscionable as well.

       {¶53} Given the foregoing, I would sustain Mr. Jones’ first assignment of error.


APPEARANCES:

ROBERT E. KERPER, JR., Attorney at Law, for Appellant.

CARL H. GLUEK, Attorney at Law, for Appellees.

JEFFREY J. MAYER, Attorney at Law, for Appellees.
