In recent years, courts have consistently supported employers’ use of arbitration agreements in employment settings. During the last few terms, the Supreme Court of the United States has issued several decisions, such as American Express Company v. Italian Colors Restaurant (2013) and AT&T Mobility, LLC v. Concepion (2011), upholding the use of arbitration agreements. Texas courts have also issued decisions, such as In re Halliburton Co. (2002), upholding the use of such agreements.

While courts generally enforce arbitration agreements, they sometimes refuse to do so when an arbitration agreement includes provisions considered unconscionable under the law. A recent decision out of El Paso County identified some clauses that courts might consider unconscionable. In the decision, which involved the enforceability of an arbitration agreement between an employer and a part-time dishwasher, the court focused on the fact that the employer had drafted the agreement and that the employee had had no ability to negotiate terms related to it. The court further observed that the employer had made representations in the agreement that arbitration had the advantage of being less formal, quicker, and less expensive. The court considered these representations to have been lies because the employer could not support them with evidence.

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