• Exceptional Performance May Mean Higher Attorneys’ Fees Award

    An April 21, 2010 U.S. Supreme Court decision can increase employer exposure to enhanced attorneys’ fees in contingency cases filed in Federal Court. The decision, Perdue v. Kenny A., 08-C.D.O.S. 4896, held that the plaintiffs’ lawyer’s performance, a key factor once used only to set the amount of the attorney’s fees, may now also be used to enhance or multiply those fees.

    Prior to this decision, certain factors such as attorney performance, risk, and expense advancement, were used by Courts to calculate reasonable attorney’s fees in contingency cases. Those fees are referred to as Lodestar fees. Under the Lodestar method, the Court multiplied the number of hours a lawyer worked by the prevailing hourly rates in the lawyer’s area, to determine the reasonable attorneys’ fees. However, in extraordinary circumstances, a Court could then use other factors to enhance the attorneys’ fee, for example, multiplying the fee by two.

    In this case, however, the Court held that attorney performance, a factor previously limited to calculating the Lodestar fee, could also be used in enhancing that fee. The Court reasoned that in extraordinary circumstances, Lodestar calculation factors might not adequately take into account the justification for enhanced fees, and should not, therefore, be per se subsumed in fee calculation only.

    This case opens up the possibility that numerous other factors, such as an extraordinary result, advancement of expenses, or delay caused by defendants, could be used to increase the size of the plaintiff’s attorneys fees beyond the ordinary Lodestar calculation.

    Employment related legal issues can present significant exposure to employers.  Employees and employers should consult with an attorney to ascertain their rights.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Rutger J. Heymann, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Senate Defeats Fair Pay Restoration Act: Ledbetter Reigns

    In 2007, the United States Supreme Court ruled that a female employee who was paid less than her male counterparts failed to timely file her discrimination suit because the disparate pay was instigated years before she actually found out about the pay differential. The court, in Ledbetter v. Goodyear, rejected the plaintiff’s argument that the statute of limitations begins to run each time the employer issues a new paycheck with the disparate pay. Instead, the court decided that the discrimination occurred when the employer initially decided to pay the female employee less
    than the male employees, even though the female employee had no idea she was being paid less.

    The House immediately passed a bill to change the law, but the Senate version languished significantly longer. The Senate bill was defeated yesterday in a 56-42 vote (the bill required 60 votes to pass). According to the Wall Street Journal, “The outcome wasn’t a surprise, as Democrats acknowledged ahead of time that it was unlikely they would overcome Republican opposition.” As a result, the Ledbetter case continues to be the law. As it currently stands, employees who believe they are the victim of discrimination must file an administrative claim with the EEOC within 180 days (300 days in California) of the initial discriminatory decision, not within 180 days of the effect of the discriminatory act.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • IRS Pushes Independent Contractor/Employee Issue

    The IRS appears to be taking stronger steps toward ensuring employees are not misclassified as independent contractors. The IRS “considers this a major issue of non-compliance.” The IRS encourages workers that believe they have been misclassified to file a Form SS-8 with the IRS to challenge the determination and to get the IRS to reclassify the worker.

    The IRS also allows workers to file a Form 8919 while the reclassification is being reviewed. The form allows workers to pay only the portion of the FICA and Medicare that are attributable to employee, instead of the entire FICA and Medicare tax applicable to true independent contractors.

    The IRS looks at three areas to determine a workers’ status:

    • Behavioral control (whether the business has a right to direct and control how the worker performs the task for which they are hired)
    • Financial control (whether a worker has the ability to affect financial decisions)
    • Type of relationship (what does the contract between the worker and the business say; does the worker get benefits; permanency of the relationship)

    The IRS correctly directs employers and employees with questions regarding appropriate classification to seek advice from a knowledgeable professional.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.