Last week, I was asked to write about our firm’s efforts to figure out what to do about our health insurance and health care program as we prepare for the effective date of the Patient Protection and Affordable Care Act.  The result was published in the Washington Post here.  The bottom line is that employers have a great deal of uncertainty, complexity and cost to overcome in developing an effective plan for the future–whether or not the Supreme Court finds that the law is constitutional.

I was called for jury duty this past week in Cuyahoga County, Ohio, and served on the jury of a brief civil trial featuring a pro se Plaintiff and a lawnmower dispute.  Years ago, I had tried an employment case before the same Judge.  The experience was fascinating.  Here is what I learned (or had reinforced for myself): 

  1. The jurors wanted to fill in the missing pieces.   Documents, witnesses, arguments.  They wanted to see a defense, regardless of the burden of proof resting with Plaintiff.  Jurors speculated why certain facts were not presented.  If the juror liked and trusted the party, he or she assumed that the party had a valid, strategic reason for not presented the evidence.  If the juror disliked the party, the juror assumed the party was hiding something.
  2. Lawyers are expected to be organized and ready, and jurors really do hold it against you if you are not.
  3. Not surprisingly, Jurors do not like when you are rude or aggressive with a witness who doesn’t deserve it.  They don’t like it when you interrupt the witness or the judge.  You lose trust quickly if you behave badly.
  4. Parties’ attitudes, gestures and facial expressions are well observed, especially when they are not on the witness stand. 
  5. Jurors expect businesses to treat customers fairly.
  6. Jurors really want to understand and apply the law. 
  7. Juries try to find a win-win.  They talk about court costs; they speculate on damages; they want to “split the baby.” 
  8. It’s hard for jurors to remember all the facts and evidence presented.  They are understandably preoccupied with everything other than your case:  their jobs and family commitments, lunch, when the next bathroom break will be.  A good lawyer should use closing to help jurors to recall the key facts and to arm the jurors who will be arguing for your side during deliberations.
  9. If the jury is taking a long time, it may not have to do much with deliberations.  Many of them are thinking about having to go back to work, or having to go back the general jury assembly, and don’t mind hanging around for a while longer with the new friends they’ve bonded with.
  10. T.V. comes up a lot in the jury room.  CSI, Law and Order, the Good Wife.  Jurors get that it’s not supposed to be like T.V., but it is a common reference point.

Actually, maybe I learned eleven things.  Lastly:  You don’t need a law degree to try a case well.  I will remember that when litigating with pro se litigants. 

Mary Schmitt Boyer, the basketball writer for the Cleveland Plain Dealer, has written an article about the impact of the Players Union’s disclaimer of interest months after the start of the lockout.  Plain Dealer Article 11-15-2011.pdf  In it, she quotes me on certain aspects of the labor exception to the antitrust laws.  She did not elaborate on the differences I noted between sports unions and conventional unions.  Two of those are 1. the perpetuation of the role of “stars” in sports unions, compared with most unions, where all employees are placed on the same pay schedule (there are not “Star butchers” who get paid many times what less skilled butchers are paid; and 2. the institution of agents, who actually do the negotiations on wages for their clients–something most unions do themselves, and which is the assigned role of unions under the Labor Management Relations Act: to negotiate over wages, hours and terms and conditions of employment.

The Akron Beacon-Journal reports that the Steelworkers Union has requested that the White House investigate a research partnership between the University of Akron and an Akron-based subsidiary (A3T LLC)of a major Chinese company in the area of polymers and tires. The Steelworkers represent many of the hourly employees of U.S. tire companies and are concerned about the potential for American research results to fall into the hands of foreign competitors. The University of Akron does in fact have one of the nation’s leading polymer research facilities, but it generally welcomes the opportunity to share its results widely. The Beacon-Journal article quoted the University as stating:

As home to the nation’s largest and most successful polymer research center, we see it as part of our job to help create jobs in Northeast Ohio, an area of the country hit hard by today’s challenging economy.

Partnerships, alliances and collaborations and a myriad of other forms of linkages and connections are another means to helping students, faculty and the entire community to compete and succeed.

The selection of Akron as the U.S. Headquarters for Triangle Group, one of the largest Chinese tire makers, was originally hailed as an important victory for Akron, and an opportunity for additional high-quality jobs. The agreement between Triangle and the University was reported as an example of the benefits to the community of international cooperation.  Whether the Steelworkers’ call for an investigation will delay or destroy the opportunity for new jobs in the Akron area remains to be seen. There has, as yet, been no response from the White House to the request.

With jobs the main focus of the Administration and Congress (other than re-election, of course), it is worth identifying why jobs are so hard to come by.  We have already mentioned the level of uncertainty in a previous post.  Now CBS News has done an excellent job of explaining how small businesses are being squeezed, because banks do not know how to react to 2011 circumstances under their 2006 rules of engagement.  The story, featuring a COSE member and my colleague from the NSBA, Marilyn Landis, is brief and accurate–well worth your time.

The NLRB has postponed the effective date for its new union organization rights posting requirement until January 31, 2012.  In its press release, the Board states that it decided to postpone the requirement, “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”  Further, the Board stated:

The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made.

Although not mentioned in the press release, the postponement comes in the wake of the filing of at least three separate lawsuits pending in which organizations and interested parties have sought to block the posting requirement and challenge its legality, including the Chamber of Commerce, the National Federal of Independent Business and the National Association of Manufacturers.

Because of a Constitutional Amendment passed in better times, Ohio must adjust its minimum wage annually based on cost of living statistics.  The Ohio Department of Commerce has just announced that Ohio’s minimum wage will increase by  30 cents an hour (3.9%) from $7.40 to $7.70 per hour.  Tipped employees will see their minimum hourly compensation go from $3.70 to $3.85 per hour, assuming they receive an adequate level of tips.  Very small employers (those who have less than $271,000 in receipts in 2012) are covered by the federal minimum wage, which remains at $7.25 per hour.  14- and 15-year old employees also have a $7.25 minimum wage.  A link to the 2012 Oho minimum wage poster is here.

Employers who believe that they may have been erroneously classifying employees as independent contractors may now take advantage of a new IRS voluntary compliance program.  This program allows employers to reclassify any workers erroneously treated as independent contractors.  Employers who choose to do so may take advantage of the program’s lower cost settlement terms and audit relief for previous years. 

This announcement is probably a precursor to the IRS’s much more aggressive focus on enforcement of large employers’ responsibility for collecting taxes, rather than leaving it up to  small independent contractors to pay their own self-employment tax.  It is also worth noting that  another way businesses can protect themselves from audit liability (besides taking advantage of this amnesty program) is to make certain that their independent contractors actually do pay their full self-employment taxes.

Indeed, while the current Washington theme is to protect the “little guy,” it is ironic that the current IRS policy assumes that this same little guy will cheat on taxes, while the “big guys” will pay everything due, if only they classify the little guys correctly.  In any case, where appropriate, this new IRS program may be highly beneficial to employers.

A Frantz Ward LLP alert regarding this new program is available here.

To help readers see for themselves what is in the American Jobs Act concerning employer discrimination based upon the status of applicants as unemployed, we have uploaded the provisions of the AJA as transmitted to Congress.  It is unclear if the actual bill will be introduced with that name because a Republican Member of Congress, Rep. Louie Gohmert, introduced his own bill using the same name, which adopts the method of eliminating the corporate income tax and corporate AMT as its way to encourage hiring in the U.S.  Congressional rules do allow multiple bills to be introduced with identical names, but it is worth watching out for such duplication.

The Obama Administration’s AJA language on unemployment discrimination follows:

Unemployment Discrimination Provisions in AJA.pdf