law-pre-injury-waiver
The Drennans contend the arbitration agreement is nevertheless unenforceable because it violates section
406.033(e) of the Texas Labor Code, which provides
[a] cause of action [against a nonsubscriber] may not be waived by an employee before the employee’s injury or
death. Any agreement by an employee to waive a cause of action or any right described in Subsection (a)
before the employee’s injury or death is void and unenforceable.
Tex. Lab. Code §406.033(e). Subsection (a), in turn, limits the common law defenses available to an employer
who does not carry workers’ compensation insurance. Id. § 406.033(a). However, an agreement to arbitrate is a
waiver of neither a cause of action nor the rights provided under section 406.033(a), but rather an agreement
that those claims should be tried in a specific forum. See, e.g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 519
(1974) (holding that arbitration clauses are, “in effect, a specialized kind of forum-selection clause”). See also
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985) (stating that, “[b]y agreeing
to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only
submits to their resolution in an arbitral, rather than a judicial, forum”). Accordingly, section 406.033(e) does not
render the arbitration agreement void.
In Re Golden Peanut Co.,LLC, No. 09-0122 (Tex. Nov. 20, 2009)(per curiam)(mandamus compelling arbitration
granted) (arbitration and nonsignatories, wrongful death plaintiffs bound by arb agreement signed by worker
killed on the job as derivative claimants and must arbitrate claim against employer, pre-injury waivers, forum
selection vs. waiver of substantive rights)
IN RE GOLDEN PEANUT COMPANY, LLC; from Gaines County;
11th district (11 08 00215 CV, 269 SW3d 302, 11 13 08)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally
grants the petition for writ of mandamus.