Most jurors are employed, either as contractors, employees, or self-employed. What are their workplace concerns these days? Do they feel protected? Do they believe their pay is fair?
Understanding how jurors’ employment needs and concerns have changed (or not changed) is critical in assessing the risks in your employment litigation. Will jurors identify with the plaintiff’s complaints about unfair pay or misclassification as a contractor? According to a 2015 Washington Post article, Fair Labor and Standards Act (FLSA) hour and wage litigation has increased dramatically in the last 15 years, with workers contending that they’ve been misclassified as independent contractors or paid unfairly in other ways.
In the first part of of our employment attitudes blog (How Jurors’ Attitudes About Gender and Age Discrimination in the Workplace Affect Your Case), we discussed jurors’ experiences with, and attitudes toward, gender and age discrimination. In the second part of Litigation Insights’ national employment survey of jury-eligible mock jurors, respondents were asked about their views on employment policies and regulations, to assess whether they are satisfied with the status quo or are looking for change.
The Battle Over Wages and Workers’ Rights
In our survey, 73% of mock jurors believed that the government should increase the minimum wage so workers can better support themselves or their families. Job rights were also important – 80% of respondents believed an employer should not be allowed to fire an otherwise good employee for just one policy violation. More tellingly, 56% believed there should be more regulation to protect workers’ rights, as seen in the chart below.
Overall, mock jurors also supported other laws that protect employees. For example, respondents overwhelmingly endorsed the Americans with Disabilities Act and the Family Medical Leave Act, with 75% agreeing or strongly agreeing that the programs are necessary to ensure employees can care for their families and their health without fear of losing their jobs.
Moreover, mock jurors also believed that disability programs were important protections for workers, and the majority disagreed that workers who file claims are trying to take advantage of the system.
Affirmative Action and Employment
In a 2015 Gallup poll, respondents showed continued support for affirmative action policies for race and gender. Affirmative action policies to help women garnered more support (67%), than did programs aimed toward racial minorities, for which 58% of respondents offered support. However, when our respondents were asked about their views on affirmative action, only 37% believed that affirmative action is a good way to correct the wrongs of the past. Additionally, 60% responded that no changes were needed to existing affirmative action policies, suggesting that the majority may not support affirmative action, but they find current policies adequate. The contrast between the general Gallup poll population and jury-qualified respondents is notable, emphasizing the occasional disparity between a random sample of the population and the panel that could comprise your jury pool.
Conclusion: Continued Support for Employment Protections and Policies
Overall, mock jurors agreed with current employee protections and family leave, but offered limited support for affirmative action programs. This could mean that many jurors walk into the courtroom in an employment case predisposed toward the employee plaintiff with claims of unfair pay or wrongful termination because of their own employment experiences. Identifying those jurors who add risk to your case is crucial. Luckily, those risk factors can be assessed through pre-trial jury research, such as mock trials or focus groups, and applied to voir dire to strategically make the most of your peremptory challenges.
By Jill Leibold, Ph.D. – Director – Jury Research