Friday, February 21, 2014

“You’ve Got a Mistrial” and Labor Law “Lagniappe”

With the wrap-up of trial preparation/trial and a spate of out-of-state depositions, I am back from my employment law blogging hiatus. Having just completed a jury trial on a race discrimination claim, the following issue of juries, social media and jury misconduct caught my attention.

From an employer/defense point of view, the goal is usually to seek dismissal of employment law suits through pretrial motions to avoid the expense and uncertainty of trial. However, the reality is that in a small percentage of cases, liability will be decided by a jury. After voir dire or jury selection, the law presumes the jurors are unbiased, and as a matter of standard practice, jurors are instructed by the court not to discuss the case outside of the jury.

However, increasingly, through the use of smart phones and social media, jurors are disregarding those instructions. This problem was examined recently in an article in the Arkansas Times entitled"A Mistrial in 140 Characters"The article describes how a convicted rapist was granted a new trial because one of the jurors was posting to Facebook about the case while it was being heard. In other instances, jurors in civil cases made inappropriate comments on Twitter that revealed juror bias. Courts are wrestling with the issue and there is no easy answer. In some jurisdictions, courts are considering requiring jurors to surrender their smart phones during trial, although that raises issues of its own.

My thought is that it has always been a matter of trust that jurors will perform their sworn duty to be unbiased, and juror misconduct existed long before there were iPhones or Facebook. I also suspect that some people’s use of social media is now so engrained and automatic, that they may not even consider it a violation of their sworn duty as a juror. In all subsequent trials, I plan on asking potential jurors about their social media use, ask them if they understand that it is inappropriate to post about the case, and request the court give a very stern warning against the practice.

On to labor news. A bad week for the United Auto Workers ("UAW"). Despite the UAW having sunk millions of dollars into a campaign, workers at Volkswagen's factory in Chattanooga, Tennessee last Friday voted against representation by UAW. This marks a major defeat for union efforts to gain a foothold in auto manufacturing in the South.

However, not all the news was bad for the labor movement. The National Labor Relations Board ("NLRB") has resurrected a proposal to implement new rules aimed at speeding up unionization elections. Business groups have described previous similar efforts as the "ambush" or "quickie" election rules. The NLRB’s previous attempt at implementing the rules were invalidated by a District Court ruling that it had been adopted without a validly constituted quorum.

In essence, the proposed rules shorten the time between when employees sign cards stating they want to join a union, and an NLRB supervised election. This could be as little as a two week period, giving employer’s little opportunity campaign against unionization and increasing the chances of a successful union vote.

* Lagniappe: An extra or unexpected gift or benefit, i.e. "a little something extra". (Chiefly Southern Louisiana & Mississippi).