Texas Employers Get Juries Out of the Mix

Can an employer really force its employees to waive their right to a jury? Some guy once said that "by a declaration of rights I mean one which shall stipulate freedom of religion, freedom of the press, trial by juries in all cases..." That guy was Thomas Jefferson. But does an employer get a jury of its peers in an employment dispute? Is it unreasonable to believe that an employer is at a disadvantage in having to defend its actions before a jury that usually has no business owners or managers? An increasing number of employers are requiring their employees to sign agreements to resolve employment disputes in binding arbitration - a private, final, and non-appealable forum - rather than by jury trial. The belief seems to be that arbitrators, who are either senior business lawyers or retired judges, are better able to decide employment disputes than what may become a runaway jury.

Texas courts have been steadily drifting toward supporting employers. The Texas Supreme Court has previously ruled that it was legal for employers to require long term employees to sign an agreement to arbitrate their disputes, rather than have a trial by jury. A few weeks ago, in In re Frank Kent Motor Company, that court took one more step in favor of employers by ruling that an employer could legally fire an employee if he refused to sign a waiver of a jury trial in any disputes with the employer. Unfair, you say? Maybe not. In all these cases,the Texas Supreme Court focused on the traditional at-will relationship between an employer and its employees. In an at-will relationship, either party may terminate the employment relationship for any reason or no reason at all. The Court reasoned that "since employers can fire at-will employees for almost any reason, employers could resort to firing all employees when they wanted to implement new dispute resolution procedures and rehiring only those employees who signed the waiver."Essentially, if the employer can fire you as an at-will employee, then the employer can require you to waive your rights or fire you if you refuse.

The employer-employee relationship is not a slavish one. It is an economic relationship, with alternatives built into that relationship. As the economy in Texas and the country revives, and opportunities exist for competent hardworking individuals to take the risk and strike out on their own, I am reminded of Marco Rubio's quote at the 2010 CPAC conference that "this is the only country in the world where today's employee, is tomorrow's employer."