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Reducing Exposure to Attorneys’ Fees Awards Through Use of Rule 68 Offers of Judgment (Part 2 of 2)

May 22, 2017

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This is a continuation of Part 1 http://www.bcatwork.com/2017/04/12/reducing-exposure-to-attorneys-fees-awards-through-use-of-rule-68-offers-of-judgment/

The Recommended Form and Content of a Rule 68 Offer of Judgment

The offer of judgment should be in writing and state that the defendant is offering to allow judgment to be taken against it for a specific dollar amount (which typically is no less than the amount of the plaintiff’s lost wages through the date of the offer, filing fees, and other recoverable costs), plus an unspecified amount described as “the reasonable attorneys’ fees incurred by the plaintiff through the date of the offer in prosecuting his claims against the defendant.”

There is risk that the plaintiff will accept offer and a dispute will ensue regarding the amount of the unspecified “reasonable attorneys’ fees” offered. To guard against this, it is advisable to include the following language in the offer of judgment: “The amount of the ‘reasonable attorneys fees’ will be

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Avoiding Three Common Mistakes Made By Employers When Terminating Employees

Common Mistake No. 2: Paying a Separating Employee Something Extra Without Requiring a Waiver and Release

This post continues the discussion of common errors made by employers terminating employees which can be easily avoided.

Whether it is advisable to pay a separating employee something extra in exchange for a waiver and release of claims against the employer depends on a number of factors, such as the strength of the potential claims that the employee would be waiving and the likelihood of the employee filing suit. That said, an employer should never pay separating employees money to which they are not otherwise entitled without requiring the execution of a waiver and release.

While the wisdom of this advice might be obvious to some, it is not uncommon in my experience to see an employer gratuitously pay a couple of weeks pay to a separating employee without requiring the employee to execute

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Missouri Legislature Changes the Burden of Proof for Workers’ Compensation Retaliation Claims

May 10, 2017

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On Monday, May 8, 2017, the Missouri Legislature passed Senate Bill 66.  Senate Bill 66 amended a number of sections of the Missouri Workers’ Compensation Act.  Of significant note for employment litigators, Senate Bill 66 modifies the burden of proof for workers’ compensation retaliation claims under §287.780 R.S.Mo.  This change was a direct response to the Missouri Supreme Court’s decision in Templemire v. W&M Welding, Inc., 433 S.W.3d 371 (Mo. 2014).  

In Templemire v. W&M Welding, Inc., the plaintiff alleged he was fired in retaliation for filing a workers’ compensation claim. The trial court entered judgment in favor of the employer.  The Missouri Supreme Court ultimately reversed and held that to make a submissible claim of retaliation under §287.780 R.S.Mo., “an employee must demonstrate his or her filing of a workers’ compensation claim was a ‘contributing factor’ to the employer’s discrimination or the employee’s discharge.”  The Templemire decision was

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Missouri Legislature Passes Significant Changes to the Missouri Human Rights Act

May 9, 2017

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Today, the Missouri House of Representatives passed Senate Bill 43, which makes significant changes to the Missouri Human Rights Act (“MHRA”), Missouri’s fair employment practices law.  Having now passed both Chambers, Senate Bill 43 now goes to Governor Greitens desk for approval.  Senate Bill 43 makes a number of important changes to the MHRA: 

Burden of Proof Changed to Motivating Factor

The burden of proof on claims under the MHRA is changed to “motivating factor.”  In 2003, the Missouri Supreme Court held there was a right to a jury trial under the MHRA.  In 2005, an advisory committee on Missouri’s jury instructions considered the need for a new instruction for claims under the MHRA, and ultimately recommended that the burden of proof for claims under the MHRA be “contributing factor.”  The Supreme Court adopted that recommendation, and in Daughtery v. City of Maryland Heights, 213 S.W.3d 814

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Avoiding State Law Pitfalls

May 8, 2017

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Avoiding State Law Pitfalls

May 8, 2017

Authored by: Bill Wortel

This is the second hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.

Scenario #2

A manager of a Chicago, Illinois restaurant calls you regarding a long-term employee whose son is in the U.S. Marines. The employee would like to take a month off work to spend time with his son before he departs for Iraq. The employee does not have any unused vacation or other form of leave available under the Company’s policies. The manager advises that the employee’s performance is average, but a 30-day leave would negatively impact the restaurant’s operations during the busy summer months. You advise the manager that the Family & Medical Leave Act does not apply because neither the employee nor his family member suffers from a serious health condition, and the Uniformed Services Employment & Reemployment Act (USERRA) is inapplicable because that statute only protects employees who are, themselves,

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The Use of Unconditional Offers of Reinstatement to Reduce Damages Exposure

This post discusses the underutilized litigation strategy of extending an unconditional offer of reinstatement to a former employee-plaintiff who has filed (or has threatened to file) suit challenging his or her termination from employment.

How the Rejection of an Unconditional Offer of Reinstatement Impacts Damages

The U.S. Supreme Court has held that a former employee’s rejection of an unconditional offer of reinstatement (i.e., one that does not require the plaintiff to waive or compromise his or her discrimination claim) to a substantially equivalent position tolls the accrual of the employer’s back pay liability:

An unemployed or underemployed claimant, like all other Title VII claimants, is subject to a statutory duty to minimize damages. . . . This duty, rooted in an ancient principle of law, requires the claimant to use reasonable diligence in finding suitable employment. Although the unemployed or underemployed need not go into another line of work, accept

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Paid Sick Leave

April 25, 2017

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Paid Sick Leave

April 25, 2017

Authored by: Lily Kurland

While no federal law requires employers to provide employees with paid sick leave benefits, such an obligation does exist under certain state and municipal laws, including but not limited to those in Connecticut, California, Illinois, Massachusetts, Oregon, Vermont, Washington, D.C., Seattle, and New York City.

The scope of each of these laws, however, varies greatly. For example, while Connecticut’s law generally only applies to hourly workers in certain “service” occupations, California’s law generally applies to all employees, including temporary employees, who work in the state for 30 or more days per year. The consequences for failing to comply with the relevant state or municipal law likewise vary, with certain locales providing employees with their own private right of action.

In order to determine what, if any, paid sick leave obligations it has, employers should be sure to familiarize themselves with the following information:

  • The states or municipalities that have
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Getting More Bang for Your Buck With Separation and Settlement Agreements

All employers, at one time or another, will provide terminated employees with a severance payment for a release of all claims that employees may have against the employer, as well as other promises.  Too often, employers blindly “copy and paste” language from old agreements that may contain outdated provisions that no longer comply with current law, or that were tailored to a factual setting different from the situation they are currently facing.  Employers should review their standard settlement agreements, with the following non-exhaustive items to bear in mind.

Timing of Execution.   An employee may not release future claims, i.e., claims that have not yet accrued.  Employers sometimes provide severance agreements to departing employees while they are still employed.  If the employee signs while employed, waiving any past claims, the waiver would not apply to any claims that accrue after the employee’s execution of the agreement.  Thus, if the employee is

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Early Dismissal Strategies When Dealing With a Dishonest Plaintiff

April 19, 2017

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Dishonest plaintiffs can make it difficult, and in some cases impossible, to successfully move for summary judgment. Indeed, a dishonest plaintiff who understands the legal landscape can easily defeat summary judgment by claiming that there exists “direct evidence” of discrimination in the form of an admission by management that the challenged employment action was motivated by discriminatory animus (e.g., “my supervisor told me he was firing me because of my age”).

While there sometimes is nothing that can be done about a dishonest plaintiff other than attack his/her credibility in front of a jury, it is critical to ensure that that all early dismissal strategies are explored before reaching the dispositive motion stage of case. These early dismissal strategies include examination of plaintiffs’ representations in their post-employment bankruptcy petitions and in forma pauperis (“IFP”) applications.

Those new to employment litigation may be surprised by the percentage of plaintiffs that file

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Avoiding State Law Pitfalls

April 19, 2017

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Avoiding State Law Pitfalls

April 19, 2017

Authored by: Bill Wortel

This is the first hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.

Navigating the treacherous waters of federal employment law is not easy. Well-intentioned employers can unknowingly violate some of the more complicated (albeit well-known) laws like the Family & Medical Leave Act and the Americans With Disabilities Act due to a lack of familiarity with the applicable regulations or the case law interpreting them. When an employer has operations in multiple jurisdictions, the analysis becomes even more complex due to circuit splits on pivotal issues.

With so much to worry about on the federal front, it is no wonder that human resources personnel, in-house counsel, and outside counsel often do not spend sufficient time and resources staying apprised of some of the more obscure state laws on the books. If you are reading this article, you almost certainly have internal or external clients relying on

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