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We imagine that among those former employees who sue their employers, there are many who dream of hearing the words “Ladies and gentlemen of the jury . . .“ wishing for a pot of gold to follow. Obviously, the thought of hearing those words in a courtroom may make an employer cringe.
So how can an employer try to avoid making this dream come true? One way might be to ask employees to agree to waive their right to a jury trial with regard to potential employment-related claims. Plaintiff attorneys may think twice before taking a non-jury matter on a contingency fee basis.
In Florida, depending on a number of factors, including the waiver language itself, both state and federal courts have signaled a willingness to enforce a clearly written provision which demonstrates a knowing and voluntary waiver of the right to a jury trial by both the employer and employee. The waiver can be included in an employment application or an employment-related agreement such as non-compete or confidentiality agreement.
Just this past February, a federal judge in Fort Lauderdale enforced a waiver of a jury trial clause that was contained in a physician’s employment agreement with his former employer, a hospital. The physician had alleged he was fired because of his race and had demanded a jury trial.
Helpful hints to try to enhance the likelihood of a court enforcing a jury trial waiver provision include: 1) make the provision CONSPICUOUS; 2) draft it in plain English (and other languages, as applicable); and 3) suggest that the applicant or employee consult an attorney before executing the document to ensure that they understand what they are signing.
Without a jury trial waiver, an employer clearly faces the prospect of a jury trial in most employment litigation. With a well drafted jury trial waiver, a Florida employer might avoid a lot of stress, expense and an adverse ruling.
As an aside, Kara S. Nickel will be presenting a “New Claim on the Horizon: Family Responsibilities Discrimination” at our Miami office on September 17th. If you have not already done so, please register here for the in-person session or here for the webinar. We look forward to seeing you there!
