Texas Employment Law Update : Texas Employment Lawyer & Attorney : Russell D. Cawyer : Kelly Hart & Hallman Law Firm : Dallas TX Labor Updates

Manpower has published its most recent research on jury verdicts and the news is not good for employers.  According to a summary of the full report:

• Employers won the lowest percentage of discrimination jury trials this decade; only 39 percent.  Employers won on 33 percent of age cases and 52 percent of disability discrimination cases.  Expect employer's winning percentage to decrease in disability discrimination cases in the next years as post-ADAAA cases make their way to juries.
• Age discrimination cases result in the largest verdicts followed by disability, sex and race.
• Employers are better off in federal court than state court.  Employers won 43 percent of the cases in federal court versus only 37 percent in state court.  The median federal jury award was also lower at $164,925 v. $270,000 in state court.
• Median settlement rose to the highest this past decade at $90,000.

Several reasons may explain Manpower's most recent findings.  First, the economy, and juror attitudes may be affecting outcomes.   In my two most recent jury trials this year, there was a significant number of potential jurors who were either out of work or had a close family member who was unemployed.  With the national unemployment rate topping 10 percent, the increase in the unemployment rate may signal that there are more prospective jurors who may sympathize with an unemployed plaintiff-employee. 

Second, in a poor economy, some employers may choose to try cases they might have settled in the past.  Some employers may elect to try those cases that can be tried to verdict for less than they can be settled.   This may be a fiscally sound decision only in the short term or if the employer prevails at trial.

Finally, the results may reflect the fact that employers are having to try tougher cases to defend.  In any event, Manpower's research suggests that juror attitudes in employment discrimination cases are swinging in favor of plaintiff-employees and against employers.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Since at least 2004 Texas law has permitted Texas employers to enter into predispute agreements with their employees to waive a right to a jury trial. The predispute waiver of the right to jury trial can be a desirable option for employers that would prefer to avoid the potential jury trial of a civil rights or employment dispute but also dislike the disadvantages that accompany the mandatory arbitration of disputes.

Last month the Supreme Court of Texas reinforced the enforceability of predispute contractual waivers of the right to a jury trial. In re Bank of America, N.A., --- S.W.3d --- (Tex. Feb. 27, 2009). The Court’s opinion should remind Texas employers of the availability of this option and of the advantages that such agreements may have over arbitration programs. For example, advantages that the wavier of the right to jury trial may enjoy over arbitration include: having a Texas state or federal judge decide the dispute; no expenses incurred in employing the decisionmaker (i.e., judge); and full rights to a meaningful appeal of an adverse decision.

Moreover, despite the current legislation in Congress that is intended to invalidate the predispute arbitration agreements between employers and employees to resolve employment disputes through arbitration, it is unlikely that contractual waivers of the right to a jury trial will be affected by any version of the Arbitration Fairness Act of 2009. Texas employers utilizing mandatory arbitration programs may want to consider adopting a policy or program to make use of contractual waiver of jury trial if the Arbitration Fairness Act of 2009 passes and invalidates the predispute agreements to arbitrate civil rights and employment disputes.

• Email This
• Print
• Comments
• Trackbacks (1)
• Share Link