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An at-will employee agreed to binding arbitration of all employment disputes simply by continuing to report to work after the employer sent notice that it was adopting an alternative dispute resolution program as of a certain date, the Texas Supreme Court held May 30. In re Halliburton Co., No. 00-1206. The court rejected the argument of 30-year employee James D. Myers that the unsigned arbitration agreement was unenforceable. By continuing to work with knowledge of the announced changes, the employee had accepted the offer, the court ruled. Although Myers was not given a chance to negotiate, the court said the agreement was not unconscionable and cited several program terms that provided protection for the employee. It noted that Halliburton had agreed to pay all arbitration costs except a $50 filing fee and would pay up to $2,500 for an employee’s consultation with the attorney of his or her choice. Most states would have ruled the same way in this situation, said Professor Mark Berger of the University of Missouri-Kansas City School of Law. Following the U.S. Supreme Court’s 2001 decision in Circuit City Stores Inc. v. Adams, it became clear that employers could require arbitration, as long as the agreement was valid under state contract law, he said. Thus, if an employer creates a program with unfair terms — such as requiring the employee to arbitrate but not the employer — it can still be invalidated. The Texas court noted that Halliburton as well as its employees were required to arbitrate. Some plaintiffs may have problems paying for an attorney in arbitration, because contingent-fee arrangements may not be an option, Berger noted. Also, arbitrators may not hand out the large punitive awards that juries do, he said, but the flip side is that more people will have their disputes heard more quickly. Berger, who has been an arbitrator for 20 years, said he used to get one employment law case every five years. Now, he gets five cases in one year. Although there have been several bills introduced in Congress attempting to reverse this trend, they have garnered little support, said Halliburton lawyer W. Carl Jordan of Houston’s Vinson & Elkins. “There are benefits for both employers and employees in arbitration,” he said. “Although there is a more limited right of appeal, appellate courts actually reverse plaintiff verdicts more often than defense verdicts in employment cases. In fact, some employers do not want arbitration, because they think they can get a better result in court.” Asked to guess the cost savings of arbitration, he ventured 75 percent. Arbitration takes a lot of routine cases off the dockets, Jordan said, while still leaving room for precedential case law to develop. Myers’ lawyer, Barbara Gardner of Houston, faulted the court for failing to discuss how much notice an employee must have before being deemed to have waived his or her constitutional right to a trial by jury. She said the precedent cited by the court only discussed waivers of statutory right to court access.

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