Employment Law Prediction: Jury Sympathies in Recession Times

How Will the Recession Impact Juries in Workplace Disputes? That is the (Important) Question

Several employment-law attorneys, including myself, have been asked to comment on the possible impact that the recession could have on juries in workplace disputes. Given that I defend management in such suits, the following is my take on the situation.

In This Recession, Business Leaders are the (Perceived) Villians

I would expect present economic circumstances to generally favor employees in employment jury trials as to liability, if not damages. I’m thinking of the typical case involving alleged discrimination in termination of employment, which for years has been the bread-and-butter of many employment law practices, my own included.

The nation and the world are not dealing with a simple cyclical recession, but a much-publicized economic crisis in which many corporate leaders, particularly in the financial sector, have been blamed, even vilified. Therefore, many jurors will tend to view businesses and their leaders as perpetrators, not victims, of the nation’s economic hardships.

Additionally, most jurors will have experienced some employment ramifications of these hardships, either directly or indirectly through experiences of close friends or family members. These ramifications include not only job loss, but also the excessive work demands placed on many of those fortunate enough to be layoff “survivors.”

A jury of 12 is likely to have at least one unemployed member and one or more who are underemployed or “discouraged workers” not counted in the unemployment rate because they are not looking for work. The more the jury pool draws from inner cities or other higher-unemployment areas, the worst this effect is likely to be. Combined with the general blaming of corporate leadership for the economic crisis, the result is likely to be a lack of sympathy for business and increased sympathy for employees.

Locally-Owned, Small Businesses are Less At Risk

Exceptions might be cases in which the defendants are small and/or locally owned businesses or the plaintiffs are employees who have clearly brought about their own downfall and do not appear to have acted as if they were the least bit concerned about keeping their jobs. But such cases are relatively unlikely to go to trial due to lack of “deep pockets” and lack of merit.

Large Damage Awards Less Likely

On damages, it is possible that jurors may be less willing to agree on massive punitive damages awards. While they may not be generally sympathetic to employers, they may be sensitive to the need not to hurt businesses financially to the point that jobs will be jeopardized.

Jurors may also feel that with everyone suffering financially in one way or another, even sympathetic plaintiffs should not be made too much better off than others. I expect that for reasons discussed above, this factor would not lead to defense verdicts, but might result in modest recoveries — such as for back pay, with little or nothing for emotional distress or punitive damages.

The Bottom Line Is, Be Careful When Conducting RIFs

Whether your business is locally owned or a multinational, the best way to avoid going to court — let alone a jury verdict — is to both follow all applicable laws relating to terminations AND avoid even the perception of discrimination. Stay tuned for our upcoming post on how to do just that.

Photo courtesy seattletim via flickr