Despite the fact that the employer posted an arbitration agreement with a 30 day opt out clause the Court held “that is a gamble every employer takes any time it foregoes an employee signature and instead hangs its hat on a fact finder’s determination of whether it met Halliburton ‘s notice requirements.” The Court further stated even though the employer provided an affidavit purporting that the employee logged into the portal that “between Kmart’s ex parte affidavit and Ramirez’s live testimony, the trial judge was free to believe whichever he thought was more persuasive.” Id. at 6.

Kmart Stores of Texas, L.L.C., and Sears Holding Management Corp. v. Norma Ramirez, 2016 WL 1055870 No. 08-15-00094-CV (El Paso Ct. App. March 16, 2016).