It is important for employers to inform their employees of their anti-discrimination and harassment policies, their dispute mediation program, and their requirement that employees abstain from a jury trial. Explain to employees that jurors are just as unpredictable on the plaintiff`s side as they are on the employer`s side. Lawyers representing employees are expected to challenge the validity of jury waivers. The unpredictability of jury trials is exactly what they rely on as leverage to settle. In settlement negotiations, the focus is often on lawyers` predictions about the jury`s reaction to certain pieces of evidence. However, the same evidence that would convince a jury to empathize with a plaintiff may have very little impact on a judge. For example, a jury may be influenced by an applicant`s tearful statement that she was humiliated for being escorted out of the building by a security guard at the end of her employment. The same statement may not affect a judge who understands that the employer has simply taken steps to protect other employees in the company and that a security escort is quite common in such circumstances. In addition, jury trials lasted an average of 4.3 days, compared to only 1.9 days for trials. Equally important, the time between the submission of the case and its final decision was shorter in non-jury cases. In 2001, 78% of court cases were resolved within 24 months of being filed, compared to only 57% of jury trials.
In a mock trial program designed by my law firm, managers watch a filmed trial and then deliberate as a jury. The verdicts of this training exercise are always very different, even if the “jurors” are all members of the management of the same company and all follow exactly the same process. Before deciding to reject an otherwise acceptable job offer from a potential employer, private or professional, let`s review some basic facts about competence and waiver of veterinary employment contracts. Some employers require employees to accept arbitration as a condition of employment (a practice known as “binding contested arbitration agreements”). Others offer arbitration to employees as a voluntary alternative to litigation when everything else has failed. Almost all jurisdictions have binding contested employment arbitration agreements. Waivers of jury trials limit workers` rights less than these, so it is likely that waivers will also be widely enforceable. While labor arbitrators may be more competent and less fickle than juries, and while the cost of arbitration may be lower than that of a court case, arbitration is not necessarily all it is meant to be. In fact, some experts and practitioners believe that mandatory arbitration promotes claims and does not save money at all in the long run. Second, and most common in the area of non-competition, the employer may have included language in the employee`s contract that provides that the employer retains the right to apply to a judge for an injunction (TRO) to prevent an employee from continuing to violate a non-compete clause or non-solicitation clause in the agreement. Once the requested ORR has been issued, the final decision as to whether or not the shareholder is breaching an enforceable non-compete obligation is the responsibility of an arbitrator. For similar reasons, the Appeal Division cancelled the award of legal fees.
The court examined the basis of lawyers` fees in this case: the Statute, the CEPA and the Contract. CEPA requires that there be no legal or factual basis before legal fees are transferred to a dominant employer. The fact that the CEPA action survived summary judgment indicated that it had a legal or factual basis. Therefore, it was left to the court to make the contractual provision which, as it has already analyzed, was not extended to CEPA or legal claims and referred only to the agreement. Therefore, the court had no reason to defer attorneys` fees for a CEPA claim or a legal claim related to the employment relationship. Even in the event of labour disputes under a veterinary employment contract, a judge is sometimes involved. This happens most often in two cases. The result of this decision was particularly painful for this employer. The trial court had allowed the entire case, including the CEPA case, to be heard by a judge without a jury. The trial judge ruled entirely in favour of the employer, even to the point where he awarded the employer $2 million in legal fees. In deciding that the jury trial of the CEPA application had not been overturned, the Court of Appeal overturned the CEPA verdict and referred the matter to a jury for a new trial.
The goal of establishing a dispute resolution mechanism before a dispute arises, and the disadvantages associated with mandatory arbitration, are prompting many employers to consider agreements to waive jury trials. The employer, which is used as an alternative dispute resolution tool, requires employees to sign a jury waiver as a condition of employment. As interest in jury waivers grows, arbitration remains the main tactic for companies trying to contain legal fees. Since 1993, the number of arbitrations handled by the American Arbitration Association has nearly tripled, from 63,171 to 174,895 last year. But companies are finding that arbitration is not a silver bullet. On the one hand, it can be just as costly as a legal dispute. Companies typically have to pay for the entire arbitration, from hiring an arbitrator to renting a room for the hearing. Standard arbitration in a labour dispute costs between $30,000 and $100,000.
(The court system, of course, doesn`t charge a fee for the room or the judge.) What does a jury waiver look like and under what circumstances do the courts apply it? The recent appeal decision in Ohio provides the answer. Removing the jury from the equation reduces uncertainty in employment cases. In its decision, the Appeals Division provided guidance on the type of Wavier language that is sufficient. For example, the court found that waiving a jury trial for “any controversy or allegation arising out of the agreement or its violation” is ambiguous and inadequate. On the other hand, the court noted that the waiver does not have to list all of the employee`s laws or claims. Instead, it is usually sufficient to agree to waive a jury trial “in any act or proceeding related to [their] employment.” The Texas Supreme Court issued a statement this morning stating that notifying an employee at will that their employment relationship will be terminated unless they sign a mutual waiver to settle disputes without a jury is not sufficient illegal coercion to cancel the agreement. .
