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Monday Morning Pepper: Employment Law and Baseball to Start Your Week

Posted by Frank Steinberg | Feb 28, 2011 | 0 Comments

Well, February sure has blown by in a hurry.  Today is the 28th, 2011 is not a leap year, so tomorrow ushers in March.  In honor of the fledgling baseball season, we again start the week playing a little pepper, looking around the news and blogosphere for short items of interest to keep our reflexes sharp as we navigate the ever-changing terrain of an inescapable fact of business life: employment law.

Let's get the important stuff done first.  Not that it counts for much, but the Yankees' first Spring training game was played against the Phillies on Saturday.  Since this is being written on Saturday before game time, all we can do is hope for the best.

I have an irreverent streak, and this blog by Donna Ballman, a plaintiffs' employment attorney from Florida, appeals to me.

Dan Schwartz of the Connecticut Employment Law Blog reviews the — well, the fact that nothing much has changed about a tort theory that we still see occasionally in employment law cases, the “negligent infliction of emotional distress.”  Dan suggests that if you're an employer confronted with such a claim, an early motion to dismiss should be considered.  New Jersey's law is a little more favorable to employees than Connecticut's, but in general I agree with Dan.  The standard to proof that a plaintiff has to meet to sustain an intentional infliction claim is not quite impossible to meet, but is very tough, and that means that courts often can be persuaded to dismiss them early.

 Wage and hour law brings us two quick hits today — perfect for a game of pepper.  The Wage and Hour Developments suggests considering an Offer of Judgment i certain FLSA cases.  The Offer of Judgment is an under-utilized device that sometimes help to get cases over with quickly.

The FLSA and related state laws affect all kinds of employer behavior.  And that same Wage & Hour Developments notes a common employer error: unlawfully docking employees' pay for lost or broken equipment or merchandise.  The consequences of a mistake can be severe. 

In a post that's not directly about employment law, Max Kennerly notes Justice Scalia's recent approval of the theory behind the contingency fee: opening the doors of justice to injured citizens who otherwise would not be able to afford access to the legal system.  New Jersey considers the policy of equal access to the courts so important that it allows plaintiff attorneys to apply for enhanced (read, “increased”) contingency fees in particularly difficult or risky cases.  And speaking as one who represents both plaintiffs and defendants in employment cases, on balance that's a good thing.  Everyone seems to love the idea of reining in the contingency fees of those pesky trial lawyers — at least until the day they need access to the justice system and find that they can't afford to pay for it.  Then they tend to change their tune in a hurry.

That's our game of pepper for this week.  With our reflexes sharpened, let's get to work!

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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