Court of Appeals of Texas, Fifth District, Dallas
EMPLOYEE SOLUTIONS MCKINNEY, LLC, ESI/EMPLOYEE SOLUTIONS, L.P., AND ESI GENERAL, LLC, Appellants
MICHAEL WILKERSON, Appellee
Appeal from the 134th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-04305.
Justices Lang, Brown, and Whitehill
interlocutory appeal, appellants Employee Solutions McKinney,
LLC, ESI/Employee Solutions, L.P., and ESI General, LLC
challenge two trial court orders denying motions to compel
arbitration. Because the arbitration agreement at issue
delegated questions of arbitrability to the arbitrator, we
reverse the trial court's orders denying the motions to
compel and remand this case to the trial court for further
proceedings consistent with this opinion.
he suffered a workplace injury, Michael Wilkerson sued the
three appellants for negligence. Appellant ESI/Employee
Solutions, L.P. (Employee Solutions L.P.) is the parent
company of eleven limited liability companies who provide
temporary staffing solutions to third parties and do business
as "Employee Solutions." One of the subsidiaries is
appellant Employee Solutions McKinney, LLC (ES McKinney).
Appellant ESI General, LLC (ESI General) is Employee
Solutions L.P.'s general partner.
was hired by an Employee Solutions entity in May or June of
2013. On June 4, 2013, Wilkerson signed an acknowledgement
that he had been provided a copy of his employer's
arbitration policy. The acknowledgement, titled
"Employee Acknowledgement of Receipt of the Employee
Solutions Arbitration Policy & Procedures [ESAPP], "
contained the following statements:
I have been provided a copy of the [ESAPP]. I understand that
I should thoroughly read it.
. . . .
I understand that by continuing my employment (or by
accepting future employment after receiving the
[ESAPP]) I agree to submit to binding arbitration
(under the [ESAPP]) any and all claims, disputes or
controversies that exist now or later arise between me and my
Employer and/or between me and any of its affiliated
companies, employees, officers, partners, owners, clients and
customers, including claims, disputes and controversies
arising before, during and after my employment.
ESAPP is a six-page document effective February 1, 2013. It
is signed by one individual as the authorized representative
of eleven enumerated business entities, including all three
appellants. The document initially states, "Your
Employer (hereinafter simply "the Company")
recognizes that disputes may arise between the Company and
its employees . . . and that arbitration is a faster, less
expensive but fair means of resolving disputes for all
parties." Among other things, the ESAPP provides that,
"This agreement to arbitrate any and
all disputes means YOU ARE AGREEING TO
WAIVE to the maximum extent permitted by law ANY
RIGHT YOU MAY HAVE to ask for a jury or court trial in
any dispute with the Company." In a paragraph labeled
"EXAMPLES OF CLAIMS SUBJECT TO ARBITRATION, " the
Claims and disputes covered by this [ESAPP] include, but are
NOT limited to: (a) all claims and disputes that an
employee of the Company may not have or may have in the
future against the Company, and (b) all claims that the
Company may presently have or may have in the future against
By way of example, the claims covered by this [ESAPP] also
include, but are NOT limited to, all: . . .
negligence, negligence per se and gross negligence claims; .
. . and any and all claims challenging the existence,
validity or enforceability of this [ESAPP] (in whole
or in part) or challenging the applicability of this
[ESAPP] to a particular dispute or claim.
November 22, 2013, Wilkerson was injured moving a heavy bale
of wire while working at Encore Wire Corporation. According
to Wilkerson, ES McKinney told him to stay home until he
received a medical release, but he was soon fired for failing
to report to work. On April 16, 2015, Wilkerson filed suit
against the three appellants. He alleged he was hired by
"an Employee Solutions entity, presumably Employee
Solutions McKinney" and assigned to work at Encore Wire.
Wilkerson alleged that appellants, who were nonsubscribers to