« Lost arbitration agreement is enforceable | Main | "Procedural" unconscionability is now the battleground »

Post-employment defamation is arbitrable
January 27, 2006 by Ross Runkel at LawMemo

Andrea Martinez got fired after 20 years, and sued her employer claiming defamation. The employer moved to compel arbitration, in accordance with an arbitration agreement signed by Martinez.

Martinez argued that the agreement, which expressly included "personal injury" claims, did not include her claim for post-employment defamation.

The Texas Supreme Court ruled that the arbitration agreement should be enforced. In Re Dillard Department Stores (Texas 01/27/2006).

Two reasons:

1. In Texas, "personal injury" includes defamation. (I'm wondering how many other states would consider defamation to be personal injury.)

2. "A court should not deny arbitration 'unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue.'"

My view:

Certainly the second reason has become the standard in almost every court. If there is an arbitration clause, then there is essentially a presumption that all claims are included. The party resisting arbitration has the burden to persuade the court that the claim was meant to be excluded.

I heard about this from Michael Fox, Jottings by an Employment Lawyer. His post has this great title: Like Horseshoes and Hand Grenades - Close Is Enough for Arbitration Clause in Texas.

	Web www.LawMemo.com  This form will search the LawMemo web site. It does not include the Caselaw Database.