The Deprivation of Texas citizens Constitutional Rights in Employment Law

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.