Don and I are in St. Paul, MN for the next two days at the 2007 Upper Midwest Employment Law Institute. I didn’t realize that this was the nation’s biggest employment law conference. www.minncle.com. The roster of presenters is outstanding, including Don, who is speaking on the impact of Burlington Northern. I know many of the plaintiff’s attorneys from my participation in the National Employment Lawyer’s Association (NELA). www.nela.org. I am also looking forward to meeting with attorneys from other parts of ther country (plaintiff’s attorneys, as well as defense attorney’s) to get their perspective on the practice of law and, in particular, on employment law. This is my first trip to Minnesota. St. Paul looks to be a nice town. It also has some interesting historical sites and I hope to be able to do a little sight seeing while we are here.

Late Thursday, after 6 hrs of deliberations, the jury came back with a verdict for our client on her pregnancy discrimination claim. Unfortunately, the trial judge did not allow us to speak to the jurors afterwards. Sometimes it’s scary what you hear from jurors when you talk to them after a trial, but what better way to learn and get feedback than from someone who has watched and listened to you put on your case for 4 days. I understand the hesitancy on the part of judges to allow attorneys to speak to jurors, but I wish some judges appreciated the learnign experience that it offers to attorneys. Any way, it’s always a thrill to get a jury verdict in your client’s favor.

Is there anything more nerve wracking than waiting for the jury to render its verdict? I say not. Most trial lawyers are control freaks. And when the jury retires to deliberate you’ve lost control of the process. Your client asks about how you feel about the case and even if you feel good you know that you could be dead wrong. In any event, this is where I am at after three days of trial. Closing arguments were conducted this afternoon and the jury deliberated for an hour before deciding to go home. The jury will return tomorrow morning. So I will wait for the clerk to call my cell phone to come to court for the verdict…or worse, to field/consider a question from the jury. By the way, I actually had a jury once ask if in addition to punitive damages they could order the defendant to send all its employees to Title VII sensitivity training. You might imagine that the look on defense counsel’s face was priceless.

With nervous anticipation, I begin a jury trial in federal court tomorrow. My client contends that her pregnancy was a motivating factor in the defendant’s decision to terminate her employment. She is asserting claims under Title VII, as amended by the Pregnancy Discrimination Act, and the Tennessee Human Rights Act. I have spent the weekend preparing for jury selection, my opening statement, and my examinations. I have also created video clips to be used in Sanction trial presentation software when it is my turn to cross examine the “bad guys”. I imagine the trial will last 2-3 days. It is not factually or legally complex. Instead, it is a classic case pitting the credibility of the plaintiff versus the defendant, which, of course, puts an emphasis on the skill of the lawyers. Hopefully, I will live up to my client’s expectations.

I am going to be interviewing a prospective client next week who claims he was discharged for missing work for jury service. Are any legal protections available if the person can prove he was fired for serving jury duty?

Under federal law, no employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee’s jury service, or the attendance or scheduled attendance in connection with such service, in any court of the United States. 28 U.S.C. 1875. A prevailing plaintiff can be awarded back pay, reinstatement, and attorney’s fees.

Under Tennessee state law, Tenn. Code Ann. 22-4-108 provides that no employer shall discharge or in any manner discriminate against an employee for serving on jury duty if such employee, prior to taking time off, gives the required notice . . . to the employer that such employee is required to serve. With respect to remedies, the statute provides for reinstatement and back pay. Also, the Tennessee Supreme Court allows a common law retaliatory discharge action to be brought by an employee if terminated because of jury duty service. Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992). Hodges held that the common law claim could be brought in addition to the statutory claim. Under a common law claim, a plaintiff can recover compensatory and punitive damages.

We do not get calls about these types of cases very often. I trust that most employers follow the law and respect the fact that jury duty is a fact of life. But, for those employers who disreagrd the law, the potential appeal of such a case speaks for itself. Just take a look at what the jury awarded in the Hodges case.

I consider myself fortunate to have been co-counsel on a couple of retaliatory discharge cases that have “made” law in Tennessee, e.g., Crews and Guy. I follow this area of the law pretty closely and was happy to see the Western Section of the Tennessee Court of Appeals reach the result that it did in its recent decision in Little v. Eastgate of Jackson, LLC, 2007 WL 1202431 (Tenn. Ct. App. Apr. 24, 2007).

In Little, the plaintiff was represented by friends Justin Gilbert and Michael Russell of Jackson, TN. The plaintiff, who worked at a convenience store, was terminated by his employer for leaving the store to come to the aid of a person being assaulted. The store stated that the plaintiff had exposed the store to liability. On appeal, the plaintiff persuaded the court of appeals to recognize that there was a clearly-mandated public policy in Tennessee in favor of encouraging citizens to rescue others reasonably believed to be in imminent danger of death or serious bodily harm. Accordingly, the court held that this public policy may be the basis for an exception to the at-will employment doctrine in Tennessee. The court did say, however, that an employer may assert applicable defenses, such as whether it had an overriding justification for discharging the employee in such a circumstance.

It will be intersting to see what happens when this case returns to the trial court. In particular, it would be interesting to see how a jury would respond to the store’s argument, i.e., it was a nice thing that the plaintiff did, but he could have exposed the store to liability; therefore, we had to let him go based on his bad judgment. I wonder if this will sell. The store’s position seems a little far-fetched even in this day of age. Although I will admit that this defense will be tougher to overcome than if there was proof that the employer was lying about the real reason for termination.

I have been a fan of blogging for some time and have recently decided to take the plunge. I am a plaintiff’s attorney practicing law with my family’s firm, Donati Law Firm, in Memphis, Tennessee. Visit our website at www.donatilawfirm.com. My blog will primarily be legal related with an emphasis on employment law from a plaintif’s employment attorney’s perspective. I hope to hear from you, so send me your comments. Billy.

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