This unfortunate event highlights several rights Texas employees often do not understand: Arbitration and Workers’ Compensation
A recent workplace death at SpaceX’s Starbase facility in South Texas is a tragic reminder that employees and their families often do not know what rights may be affected by onboarding documents, arbitration agreements, and workers’ compensation elections.
For Texas employees, two issues deserve immediate attention: arbitration agreements and workers’ compensation coverage. These are not minor employment paperwork issues. They can determine whether an injured worker or grieving family gets access to court, a jury, full damages, exemplary damages, or only a limited administrative remedy.
1. Arbitration Is Not Automatic Just Because You Work Somewhere
Many employees assume that if an employer says “you have to arbitrate,” then arbitration is mandatory. That is not always true.
Arbitration generally depends on an agreement. An employer usually must show that the employee agreed to arbitrate and that the dispute falls within the scope of that agreement. Employees should not assume arbitration applies unless they actually signed, electronically accepted, or otherwise agreed to an arbitration policy.
Some arbitration agreements also include an opt-out or revocation provision. These provisions may allow the employee to reject arbitration if they send written notice within a certain number of days after signing or receiving the agreement. The deadline matters. An employee who misses it may lose the ability to avoid arbitration later.
There is another important issue in Texas personal injury cases. Under the Texas Arbitration Act, certain personal injury claims are not subject to arbitration unless the parties agree in writing and the agreement is signed by each party and each party’s attorney. Texas Civil Practice and Remedies Code Section 171.002 provides that personal injury claims are excluded from the chapter unless each party, on advice of counsel, agrees in writing to arbitrate and the agreement is signed by each party and each party’s attorney.
That does not mean every workplace injury arbitration clause is automatically invalid. Employers may argue that the Federal Arbitration Act applies instead of the Texas Arbitration Act, and federal preemption issues can change the analysis. But the employee and the employee’s lawyer should always examine whether the arbitration agreement is enforceable for a personal injury claim, especially if the employee’s counsel did not sign the agreement.
The practical point is simple: employees should read every arbitration document before signing and keep a complete copy of anything they sign. If the agreement includes an opt-out deadline, the employee should consider sending a written opt-out immediately and keeping proof of delivery.
2. Texas Workers’ Compensation Is Voluntary for Many Private Employers
Texas is unusual because most private employers are not required to carry workers’ compensation insurance. Employers may subscribe to the Texas workers’ compensation system, or they may operate as nonsubscribers.
This distinction matters because workers’ compensation can dramatically affect an employee’s rights after a workplace injury.
If the employer has workers’ compensation coverage and the employee does not timely preserve their rights, the employee may waive the right to sue the employer for personal injuries or death sustained in the course and scope of employment. Texas Labor Code Section 406.034 gives an employee the ability to retain common-law rights, but the employee generally must notify the employer no later than the fifth day after beginning employment or after receiving written notice that the employer obtained workers’ compensation coverage.
That five-day window is critical. Many employees never learn about it until after they are hurt, when it may already be too late.
3. A Workplace Death Can Create Additional Rights for the Family
A death case is different from a nonfatal injury case.
Even when an employer has workers’ compensation coverage, Texas law may still allow certain surviving family members to bring claims against the employer in limited circumstances. Texas Labor Code Section 408.001 generally makes workers’ compensation benefits the exclusive remedy for a covered employee or legal beneficiary against the employer for a work-related injury or death. But the statute also states that it does not prohibit recovery of exemplary damages by the surviving spouse or heirs of the body when the employee’s death was caused by the employer’s intentional act or omission or by the employer’s gross negligence.
That exception matters. In a fatal workplace case, the family should not assume that workers’ compensation automatically ends the analysis. If there is evidence of gross negligence, an intentional act, reckless safety practices, ignored hazards, defective procedures, inadequate training, or conscious disregard of known dangers, the surviving spouse or heirs may still have claims that need to be evaluated immediately.
There may also be both wrongful death and survival issues. A wrongful death claim generally belongs to certain family members for the losses they suffered because of the death. A survival claim is different: it preserves the injured person’s own claim that existed before death. Texas Civil Practice and Remedies Code Section 71.021 provides that a personal injury cause of action does not abate because of the injured person’s death.
In plain terms, the family may need to evaluate:
Whether the employer had workers’ compensation coverage.
Whether the worker had opted out or preserved common-law rights.
Whether the employer was a subscriber or nonsubscriber.
Whether gross negligence or an intentional act caused the death.
Whether there are claims against third parties, contractors, subcontractors, premises owners, equipment manufacturers, or other responsible parties.
Whether a survival claim exists for the employee’s conscious pain, suffering, medical expenses, or other damages before death.
Whether the family members have wrongful death claims for their own losses.
4. Statutes of Limitation Can Control the Case
Families also need to understand the deadline to file suit. In Texas, many personal injury and wrongful death claims are governed by a two-year statute of limitations. Texas Civil Practice and Remedies Code Section 16.003 generally requires personal injury claims to be filed within two years, and wrongful death claims generally must be filed within two years of the date of death.
The deadline may sound simple, but fatal workplace cases can involve multiple deadlines and multiple parties. The date of injury may be different from the date of death. Claims against third parties may need immediate investigation. Evidence can disappear quickly. Worksite conditions may change. Witnesses may leave the company. Surveillance footage, incident reports, safety logs, training records, maintenance records, and OSHA materials may need to be preserved before they are lost.
This is why families should act immediately after a workplace death. Waiting can damage the case even if the formal statute of limitations has not yet expired.
5. Why Employees Should Carry Their Own Written Notices
Employees in Texas should consider keeping a simple written document that does two things.
First, it should revoke or opt out of arbitration if the employee signed an agreement that allows revocation or opt-out. The language should be delivered in the exact manner required by the agreement.
Second, it should preserve the employee’s right to sue outside the workers’ compensation system, when applicable, by giving written notice under Texas Labor Code Section 406.034.
This does not mean every employee will always avoid arbitration or workers’ compensation. The enforceability of a revocation, election, or arbitration challenge depends on the documents, the timing, the employer’s policies, whether the FAA or Texas Arbitration Act applies, and the facts. But employees should at least know these rights may exist and that delay can be costly.
6. The Real Problem: Employees Often Do Not Know What They Signed
Many employees sign onboarding documents quickly because they need the job. They may click through electronic forms without realizing that they are agreeing to private arbitration, waiving jury rights, or losing the ability to sue for workplace negligence.
That lack of awareness can have serious consequences after an injury, discrimination, retaliation, wrongful termination, or workplace death. By the time the employee or the family calls a lawyer, the employer may already be arguing that the case belongs in arbitration or that workers’ compensation is the exclusive remedy.
7. What Texas Employees and Families Should Do Now
Texas employees should keep a copy of every onboarding document. They should ask whether the employer has workers’ compensation insurance. They should look for any arbitration agreement and determine whether it has an opt-out deadline. They should send any opt-out or rights-preservation notice in writing and keep proof that the notice was delivered.
After a workplace death, the family should immediately determine whether workers’ compensation applies, whether gross negligence may be involved, whether an arbitration agreement exists, whether the Texas Arbitration Act or Federal Arbitration Act applies, whether survival claims exist, and when the statute of limitations expires.
The key is not to wait until something goes wrong. By then, the most important deadlines may have already passed.
Bottom Line
A workplace death at a major Texas jobsite should remind every employee and every family of a basic truth: your rights may depend on what was signed, what the employer disclosed, whether workers’ compensation applies, and how quickly you act.
Arbitration is not automatic unless there is an enforceable agreement. In Texas personal injury cases, an arbitration agreement may be challenged if it does not meet the attorney-signature requirements of the Texas Arbitration Act, although federal law may affect that analysis. Workers’ compensation coverage may limit an injured employee’s rights, but in a death case, surviving family members may still have claims for exemplary damages if the death was caused by gross negligence or an intentional act.
Texas employees should understand these documents before they are hurt. Families should investigate immediately after a workplace death. In both situations, timing can determine whether important rights are preserved or lost.
