The rights of the citizens/employees
of this great State of Texas under the Texas Constitution are under attack. As an attorney, I took an oath to protect the
Constitution of the United States and the Constitution of Texas. It is our duty to uphold the law and to advocate
for our clients while also upholding the principles of the Texas
Constitution. The Texas Constitution is
the supreme law of the land and we have a responsibility to ensure that
statutes are not in conflict with it.
In the Employment arena,
we have witnessed an all-out attack on your right to a jury trial via Arbitration
Clauses. These arbitration clauses are buried
in the onboarding documents employees are required to sign when they are
getting hired for a job. Many times they
are not given the opportunity to review these documents. In others, the document is just written in
legalese, and even if read, the employee would not understand what he or she is
signing off on, or what rights they are waiving.
Generally, once an arbitration
agreement is signed by the employee, he or she will be waiving the following rights:
·
Right to File a Lawsuit
·
Right to a Trial by Jury
·
Right to Participate in a Class Action
·
Right to Appeal the arbitrator’s decision
·
Right to Free Access to Legal System
·
Right to Impartial Justice
Although the Texas Supreme
Court has upheld these arbitration agreements waiving a Jury Trial, it held
that “waivers of constitutional rights not only must be voluntary but must be
knowing, intelligent acts done with sufficient awareness of the relevant
circumstances and likely consequences.
A lot of the arbitration
agreements I have come across do not meet this standard. That is why I am advocating for the citizens
of Texas to take back their right to a jury trial. Henceforth, I will contest every arbitration
clause that falls short of this standard.
Employees must be made aware of the rights they are waiving in order to
make an informed decision to enter such an agreement. They also must be aware of the costs of the arbitration or who will be responsible for the costs.
Article 1, Section 15 of
the Bill of Rights of the Texas Constitution reads as follows:
Sec.
15. RIGHT OF TRIAL BY JURY. The right of trial by jury shall remain
inviolate. The Legislature shall
pass such laws as may be needed to regulate the same and to maintain its
purity and efficiency. Provided, that
the Legislature may provide for the temporary commitment, for observation
and/or treatment, of mentally ill persons not charged with a criminal offense,
for a period of time not to exceed ninety (90) days, by order of the County
Court without the necessity of a trial by jury.
Although the Texas Legislature
passed a statute making Arbitration Agreements valid, it came short of maintaining
the purity and efficiency of the Right to a Jury Trial.
Another major issue that
I see with Arbitration agreements is that a lot of them allocate the costs of
arbitration equally between the Employer and Employee. If the employee is a low-wage earner as most of
them are, then the employee is basically been robbed of any recourse if they
have been wronged, due to their inability to bear the high cost of arbitration. In the legal system, they would at least be
able to file a lawsuit in forma pauperis and demand a jury trial, at very
little expense if any.
The right to access the
legal system "in forma pauperis" means that individuals who are
unable to afford the costs associated with bringing a legal claim should not be
prevented from doing so solely because of their financial situation. This right
is protected by the Constitution and ensures that all individuals have access
to the courts, regardless of their financial resources.
However, when employees
sign an arbitration agreement, they are generally waiving their right to access
the court system and agreeing to resolve any disputes through arbitration. This
means that if an employee is unable to afford the costs associated with the arbitration, they may be effectively barred from pursuing their legal claims.
Additionally, the costs
of arbitration can be significant and may include fees for the arbitrator,
administrative fees, and other costs associated with the process. These costs
can be prohibitive for many individuals, particularly low-income workers or
those with limited financial resources.
Article 1 Section 13 of
the Bill of Rights of The Texas Constitution reads as follows:
Sec.
13. EXCESSIVE BAIL OR FINES; CRUEL OR
UNUSUAL PUNISHMENT; OPEN COURTS; REMEDY BY DUE COURSE OF LAW. Excessive bail shall not be required, nor
excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person
for an injury done him, in his lands, goods, person or reputation, shall have
remedy by due course of law.
In addition, the Texas Rules
of Civil Procedure provide for a method by which indigent litigants prove their
indigency by filing a “Statement of Inability to Afford Payment of Court Costs.”
In general, the right to
access the legal system "in forma pauperis" is an important
protection for individuals who may not have the means to pursue legal claims.
When employees sign an arbitration agreement, they are generally waiving this
right and agreeing to pursue their claims through arbitration, which can limit
their ability to seek justice and hold employers accountable for any unlawful
actions.
The third major issue we
need to consider is that The Texas Constitution guarantees the right to appeal
in certain circumstances. Article 5, Section 6 of the Texas Constitution
establishes the appellate court system in Texas and provides for the right of
appeal in cases where a party has been convicted of a crime or where there is a
final judgment in a civil case. This section also provides for the creation of
intermediate appellate courts and a supreme court to hear appeals from lower
courts.
However, the right to
appeal in the context of arbitration agreements is generally governed by the
terms of the agreement itself. As mentioned earlier, when parties agree to
resolve disputes through arbitration, they are generally waiving their right to
appeal the decision of the arbitrator, and instead agreeing to abide by the
final and binding decision of the arbitrator.
Therefore, while the
Texas Constitution guarantees the right to appeal in certain contexts, this
right may be limited or waived entirely in the context of arbitration
agreements.
Lastly, and possibly the
most important issue with arbitration agreements is Impartiality. Impartiality is a crucial aspect of the legal
system and refers to the quality of being unbiased and fair. Judges,
arbitrators, and other legal professionals are expected to approach each case
with an open mind, free from personal biases or preconceptions, and to make
decisions based solely on the evidence and the law.
In the context of
arbitration agreements, impartiality is particularly important, as the
arbitrator is effectively serving as both judge and jury in the case. If the arbitrator
is not impartial, or if there is the appearance of bias, it can undermine the
integrity of the arbitration process and may lead to unfair outcomes.
One potential challenge
to impartiality in the arbitration context is the fact that the employer is
paying the fees associated with an arbitration proceeding and thus creates a
conflict of interest. Because the employer is effectively funding the
arbitration process, the arbitrator may be inclined to rule in favor of the
employer in order to maintain their business relationship with the employer.
In contrast, judges in
the court system are paid by the state, and their salaries are not directly
tied to the outcome of individual cases. This helps to ensure that judges are
able to make impartial decisions based solely on the facts and the law, without
being influenced by financial considerations.
In contrast, the fact that employers
pay the arbitrators directly creates a conflict of interest that cannot be
remedied. This is one of the reasons why
some critics of arbitration argue that the process is inherently biased in
favor of the employer and that it may be difficult for employees to obtain a
fair outcome in an arbitration proceeding.
Overall, ensuring
impartiality in the arbitration context is critical to ensuring that the
process is fair and just for all parties involved, and this cannot be done when
employers are paying the arbitrators.
