Texas Employment Law Update : Texas Employment Lawyer & Attorney : Russell D. Cawyer : Kelly Hart & Hallman Law Firm : Dallas TX Labor Updates

The Supreme Court of Texas has agreed to hear the case of In re Frank Kent Motor Co. d/b/a Frank Kent Cadillac, No. 10-0687.  In that case, the Fort Worth Court of Appeals denied the employer's application for writ of mandamus and refused to overrule the trial court's decision not to enforce/honor an agreement between the employer and employee to resolve all disputes in with a trial sitting without a jury (i.e., a bench trial). 

I've advocated the use of jury waivers by Texas employers because I think they can provide many of the advantages of arbitration at less cost (see posts here and here).  However, the thing I found most interesting about this case is that it involved the same agreement that only six months after the Fort Worth Appellate Court order effectively denying enforcement, the Fort Worth Appeals Court enforced by way of mandamus.  See post here.  The only meaningful differences in the two cases are the identity of the plaintiff-employee and the members of the Court that decided the two cases.  Two of the three Fort Worth Justices participated in both cases.  Justice Meiers, however, wrote the opinion conditionally granting mandamus relief and thereby effectively enforcing the agreement.  He was not on the panel that denied the application for mandamus in the case accepted by the Supreme Court.  Oral argument at the Supreme Court will be scheduled in Austin later this year and an opinion expected in the next 12 months. 

If you are a Texas employer and want to learn more about effective use of jury waiver, feel free to drop me an e-mail.

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I've written several posts advocating the advantages of employer's use of waivers of jury trials to resolve employment disputes with employees.  (See posts here and here).  To recap, the mutual waiver of jury trial provides the employer and employee a fair way to resolve employment disputes without some of the disadvantages that other forms of alternative dispute resolution present.  The Fort Worth Court of Appeals recently enforced an employer's agreement with its employee to waive the jury trial of any disputes between them.  

In In re Frank Kent Motor Company, the Court of Appeals found that the waiver of jury trial provisions contained in the employer's handbook, and that the employee was aware of, was enforceable even though the employee argued he did not sign the acceptance of the waiver knowingly, voluntarily or intelligently.  The employee argued that his acceptance of the policy was not knowing and voluntary because he feared he would lose his job if he did not sign the agreement; he wasn't represented by a lawyer when he signed; he refused on two prior occasions to sign the agreement; the agreement was not negotiated and the employer indicated no willingness to negotiate changes; and his supervisor told him he had no choice but to sign the agreement.  Despite these allegations, the Court of Appeals found the allegations insufficient to overcome the presumption that the agreement was knowingly and voluntarily accepted. 

You can find a copy of the full opinion in In re Frank Kent Motor Company here.

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I just returned from Tulane University Law School's 27th Annual Multi-State Labor and Employment Law Seminar held at the La Cantera resort in San Antonio, Texas.  (See brochure here).  Attendees and presenters at this conference are some of the finest and most experienced labor and employment lawyers in the country.  During my three days at the conference, I did an unscientific, anecdotal survey of the practitioners I visited with.  Without exception, the practitioners I talked to disfavored the arbitration of employment disputes.  I've already written about the disadvantages of arbitration on this blog. (See post here). However, I was surprised that I did not find a single lawyer at this conference (and I don't profess to have spoken to all or even a majority of them) that preferred trying a case in arbitration over a case tried to a judge of jury.  No one I spoke to had ever enjoyed the "benefits" of a faster or more inexpensive resolution of the dispute in arbitration than would have realized in court.  No attorney extolled the virtue of the the limited appeal rights or the "finality" arbitration promises over the appellate rights our Texas rules provide.  Therefore, I want to encourage Texas employers to abandon the use of mandatory arbitration programs with their employees in favor of adopting mutual waivers of jury trials.  To read about the advantages of jury waivers, click here.

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Since at least 2004 Texas law has permitted Texas employers to enter into predispute agreements with their employees to waive a right to a jury trial. The predispute waiver of the right to jury trial can be a desirable option for employers that would prefer to avoid the potential jury trial of a civil rights or employment dispute but also dislike the disadvantages that accompany the mandatory arbitration of disputes.

Last month the Supreme Court of Texas reinforced the enforceability of predispute contractual waivers of the right to a jury trial. In re Bank of America, N.A., --- S.W.3d --- (Tex. Feb. 27, 2009). The Court’s opinion should remind Texas employers of the availability of this option and of the advantages that such agreements may have over arbitration programs. For example, advantages that the wavier of the right to jury trial may enjoy over arbitration include: having a Texas state or federal judge decide the dispute; no expenses incurred in employing the decisionmaker (i.e., judge); and full rights to a meaningful appeal of an adverse decision.

Moreover, despite the current legislation in Congress that is intended to invalidate the predispute arbitration agreements between employers and employees to resolve employment disputes through arbitration, it is unlikely that contractual waivers of the right to a jury trial will be affected by any version of the Arbitration Fairness Act of 2009. Texas employers utilizing mandatory arbitration programs may want to consider adopting a policy or program to make use of contractual waiver of jury trial if the Arbitration Fairness Act of 2009 passes and invalidates the predispute agreements to arbitrate civil rights and employment disputes.

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