A Texas Court of Appeals recently affirmed an order denying an employer’s motion to compel arbitration against an employee who did not speak English.  In Delfingen US-Texas, L.P. v. Valenzuela, No. 08-12-00022-CV (Tex. App. Feb. 6, 2013), an employee opposed the motion to compel arbitration, claiming that the arbitration agreement was procedurally unconscionable because she is unable to read English, the employer did not provide a translation or explanation to her of the agreement, and the employer misrepresented the nature of the agreement she was signing.  Although the employer stipulated that the employee was “illiterate as to the English language,” the employer claimed that the agreement was verbally translated into Spanish for the employee by another Spanish-speaking employee who reviewed the materials with all new hires.  The case boiled down to a he-said/she-said dispute.

Notably, the court stated that illiteracy in English alone is insufficient to establish that the agreement is unconscionable, because a person who signs a contract is presumed to have known what the contract meant.  However, the Court of Appeals upheld the trial court’s denial of the motion to compel because, based on the totality of the circumstances, there was enough evidence from which the court could determine that the employer did not translate the document and misled the employee about the importance of the arbitration agreement. 

The use of arbitration agreements in the employment context can be difficult, and this case serves as a reminder that employers must carefully draft arbitration agreements and take affirmatives steps to ensure that employees understand the importance of the agreements.  To aid in the enforceability of arbitration agreements, employers may want to consider translating them for their employees who do not speak English and working with qualified counsel regarding the drafting and implementation of arbitration agreements.