The Law Office Of

Neal Jacobs

8118 Corporate Way, Suite 110, Mason Ohio 45040

NJ

ATTORNEY FEE AWARDS:

Ask And Sometimes You Will Receive--Even If The Damages Award Is Modest

Recently a Federal Judge in Cincinnati awarded more than $125,000.00 in attorney fees to counsel whose client, a former employee, prevailed on only one of two claims submitted to the jury and whose damages award was modest. In its decision the Court acknowledged that attorneys are encouraged to accept difficult work in employee rights cases and are entitled to an award of fees if they succeed! 

ADA Disabilities ActThe case involved a claim under the Americans with Disability Act (“ADA”) and an assertion that the employer had discharged the employee as a result of raising the ADA claim. The employee only prevailed on the retaliatory discharge claim but the Court ruled that the employee was the prevailing party and entitled to legal fees paid by the employer, even if the limited success was not all the relief sought by the employee.

The Court ruled that: (1) the complication of the issues raised; (2) the time required to litigate the matter (the case was filed in 2012 but not tried until 2015); (3) the skill of the employee’s attorney; and (4) the significant hours spent on the matter provided a basis for finding that the lawyer’s fee was reasonable. While not all legal claims provide for legal fees the message is clear—the possibility of attorney fees need to be considered by the employer. In other words, if an attorney accepts an employee rights case and prevails, the employer may be subject to attorney fees even if there is a modest damages award.

The clear lesson is that when drafting an employment complaint, where possible, the attorney should plead claims that provide for attorney fees. Who knows--maybe the employer will be open to settlement discussions if the threat of the employee’s legal fees are “hanging over their head”.
 

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Employer Arbitration Agreement

Employers often require employees to sign an Arbitration Agreement as a condition of their employment.  These agreements prohibit the employee from filing a lawsuit in court; instead these agreements mandate that the employee resolve employment disputes using an arbitrator, without a jury.

Some arbitration agreements make litigation prohibitively expensive by requiring the employee to share in the cost of filing the arbitration and the cost of the arbitrator--many of whom charge $300.00 to $400.00 per hour to hear the case.  Similarly, some agreements seek to prohibit recovery of punitive damages and attorney fees. Thus, although arbitration is intended to be affordable alternative, an employee may find that the arbitraton agreement is so one-sided that he or she is effectively denied a remedy.

Recently this occurred in a matter that I handled. I was aware of the arbitration agreement but nonetheless filed a complaint in Federal Court. While the Court ultimately ordered arbitration, it struck the “pay to play” provision (the employee did not have to pay any portion of the arbitrator’s fees); required that the matter be heard where the client was employed (not at the company’s corporate offices which were hours away) and eliminated the provision prohibiting punitive damages and attorney fees.

The lesson is simple—don’t let an one-sided Arbitration Agreement go unchallenged. If you are concerned about the terms of the agreement all is not lost.  Find an experienced employment lawywer who is not afraid of challenging the agreement.  If you do not understand your rights under an Arbitration Agreement call Neal Jacobs to better understand your rights.
 

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EARNED COMMISSION:

That Commission Check is  Yours, Not Your Employers!

Sometimes employment issues are unclear.  This is not an excuse for the attorney to give up—rather he or she needs to work harder and be more creative.   

earned commission checkRecently three clients visited my office with similar problems.  They were commissioned account representatives who had been terminated.  Each had closed a sale before their discharge but commission had not been paid in full.  The problem did not seem complicated--each had completed the sale and assumed that they should be paid when the company was paid.  Unfortunately the legal answer was not so clear.  

Some courts have held that the commissions are not payable absent an unambiguous agreement or an express contractual provision entitling the employee to commissions after his or her termination.  Other courts have found that even though no written employment agreement exists the employee is entitled to commissions earned on sales completed prior to the employee leaving the company.  Such a finding is based on a finding that there exists an “implied contract”.  An employee may also argue that the employer will be unjustly enriched if the commission is not paid.  These cases are fact specific but if you believe you are entitled to commission you need to speak to experienced employment counsel.

The truth is that companies are happy to avoid commission payments to former sales representatives.  Some Court’s seem willing to accept this bad behavior.  Counsel has to push back and educate Judges that avoiding payment is legally impermissible, unfair and permits an employer to reap unjust rewards. 

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HOSTILE WORK ENVIRONMENT

RETALIATION: A Dynamic Duo of Claims

Recently a client spoke with me after complaining to his supervisor about a co-worker who had used a company computer to access pornography, and who had earlier been warned about his treatment of women in the workplace. The client’s supervisor told him to “work it out” and refused to discipline the offending party.  When the client complained about lack of discipline he was demoted from his role as a Manager, given a job with fewer responsibilities and no subordinates and paid less money. 

The client believed that he had claims against his employer for creating a “hostile work environment” and for “retaliation” based on his demotion. I explained that a hostile environment claim requires that the prohibited activity: (1) be sufficiently severe and pervasive to interfere with an employee's work, or (2) create an environment that a reasonable person would consider hostile.  With regard to his retaliation claim I advisesd the client that an employee makes a "prima facie" case when he or she demonstrates: (1) that he / she engaged in protected activity; (2) that his / her employer was aware that he had engaged in the protected activity; (3) that he /she was subjected to an adverse employment action; and (4) there existed a causal link between the protected activity and the adverse action.

There was no dispute that the client engaged in protected activity when he reported the sexual harassment and that the employer was aware that he had engaged in protected activity. The employer contends that the new “job offer” was similar in nature to his former job. The position is without merit, and we are pursuing the claim.  While there is no certainty of outcome, an employee can be certain that if he or she does nothing there will be no positive resolution of the employment dispute.

Succeeding on a claim for hostile work environment and retaliation requires an experienced employment attorney. Neal has been successful in resolving these types of matters.  He encourages you to call him if you believe that you have been the victim of employment discrimination in your workplace.

 

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TORTIOUS INTERFERENCE

In previous blogs I have discussed non-compete agreements that seek to limit ordinary competition. Former employers often file a claim for tortious interference with business relationships in their lawsuit to enforce non-compete agreements.

To recover for interference with business relationships the plaintiff must show: (1) a business relationship; (2) the former employee's knowledge of the relationship; (3) an intentional interference causing a breach or termination of the relationship; and (4) damages. Fair competition, however, is privileged and will defeat a claim of tortious interference.

Mere speculation that the former employee has interfered with the former employer’s customer relationships or contracts is not enough. If exclusive contracts with customers are not utilized in a particular industry, and service providers are subject to change, then the former employer has no legal right or reasonable expectation to remain the exclusive provider of services.

Interference with business relationships is easily pled and can be intimidating to a former employee—even if there is no basis for the claim. If you have questions regarding a non-compete, or a former employer threaten to file a complaint for interference with business relationships call Neal D. Jacobs.
   

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Employment Lawyer

Litigating wrongful termination, employment discrimination, harassment, Family Medical Leave Act, and retaliation claims.

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