Failure To Thoroughly Research Can Cost. Lots.

Ask a simple question. Get a simple answer. If you actually research it, that is. Nutrition Management Services learned this lesson the hard way when its in-house counsel failed to research whether the pregnant plaintiff former employee was covered by the Family and Medical Leave Act of 1993 prior to terminating her employment in response to her “good news.” The employer was not only found liable for violating the applicable federal and state civil rights laws, but also was hit with a hefty liquidated damage award for not acting in “good faith” under the Act. The offending misconduct was failing to take steps (read: research) to ascertain whether the law even applied to the plaintiff.

The Act entitles a prevailing party to an award of compensatory damage for its violation. Liquidated damages equal to the compensatory award and interest are tacked on when an employer’s violation is not in “good faith” and the employer does not have reasonable grounds to believe that it was acting in good faith.

The employer’s director of human resources, an attorney with general knowledge about employment law, made the decision to terminate. Apparently, the director had just enough knowledge to get himself in trouble. He testified to his belief his decision was supported because she was a brand new employee. However, the director failed to recognize that time spent working for the employer’s “successor-in-interest” counted towards the period mandated by the Act.

The phrase “good faith” is not defined in the Act; nonetheless, the court found this failure fit squarely within the meaning of the phrase:

Reasonable good faith requires a defendant to take affirmative steps to ascertain the requirements of the law. Martin, 940 F.2d at 908-909 (reversing district court’s denial of liquidated damages under the FLSA). “A defendant employer’s burden of proof is a difficult one to meet. Double damages are the norm, single damages the exception.” Id. at 908 (internal citations omitted). Nutrition Management has not met its burden of proving Brown’s termination was a good faith violation of the FMLA.

The liquidated damages award of approximately $80,000 brought the total damage award up to just over $160,000. The court also awarded attorneys’ fees to plaintiff’s counsel in the amount of $145,000. You can read the order here.

The lesson to be learned?

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

Too bad counsel didn’t “nail” the issue with a little bit of hunting and gathering for the right information.

Hat tip to the ABA Journal.

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Metaphorical Databases – A Net Cast Upon The Waters of Rhetoric

There really is a search engine or database for just about anything. Metaphors are no exception. The Mind Is A Metaphor is one of the stops you should make on your quest for rich written product. The site is maintained by Brad Pasanek, an Assistant Professor at the University of Virginia. The site is chock-full of information about metaphors, while the actual search page is located here.

A more stripped-down resource can be found at the ATT – Metaproject Databank. Taken from the site, “[t]he databank mainly contains real-discourse examples of metaphorical descriptions of mental states and processes. It also contains some examples of the use of metonymy in mental state descriptions.”

Just think, if you mine these great resources for phrases and elements, your briefs can conjure up Piozzi and Locke and give voice to thought with fiery tongue in the courtroom.

Hat tip, once again, to the Legal Writing Prof Blog.

Metaphorical Databases – A Net Cast Upon The Waters of Rhetoric

There really is a search engine or database for just about anything. Metaphors are no exception. The Mind Is A Metaphor is one of the stops you should make on your quest for rich written product. The site is maintained by Brad Pasanek, an Assistant Professor at the University of Virginia. The site is chock-full of information about metaphors, while the actual search page is located here.

A more stripped-down resource can be found at the ATT – Metaproject Databank. Taken from the site, “[t]he databank mainly contains real-discourse examples of metaphorical descriptions of mental states and processes. It also contains some examples of the use of metonymy in mental state descriptions.”

Just think, if you mine these great resources for phrases and elements, your briefs can conjure up Piozzi and Locke and give voice to thought with fiery tongue in the courtroom.

Hat tip, once again, to the Legal Writing Prof Blog.

Is “Legal Thriller” an Oxymoron?

Not according to Scott Turow who has been making a living since the late 1980’s penning some of the finest legal novels around. The Aspen Times has this well-wrought piece on Mr. Turow and his background, in honor of his appearance before the Aspen Writer’s Guild last night.

Mr. Turow graduated from Harvard Law in the late 1970’s and worked as an assistant U.S. attorney and then as defense counsel specializing in defending death row convicts. He believes that crime and the criminal justice system are full of interest and drama. The subject certainly has provided him with plenty of material for his bestselling novels.

But it appears that Mr. Turow has been moving away from the sensational and more toward the personal with his latest endeavor, the sequel to Limitations. Seems hardly a surprise that the subject that the 60-year-old Turow would choose to explore is a man of similar years looking back on his life:

“I’m writing about a substantially different person,” he said. “Rusty is 60, about to ascend to the state Supreme Court, the crowning achievement of his career. He can feel the wings of time, and he isn’t quite satisfied with his life, or even if he has had good fortune.”

Could this be autobiographical? I cannot imagine how Mr. Turow could look back on his life with other than a sense of satisfaction. But then, perhaps life may once again be imitating art, as evidenced by the closing quote in the article:

“It’s what E.M. Forster said: Life goes on, novels don’t. So there’s something artificial about every novel. Any novel is going to be a bit unsatisfying in its conclusion.”

Is “Legal Thriller” an Oxymoron?

Not according to Scott Turow who has been making a living since the late 1980’s penning some of the finest legal novels around. The Aspen Times has this well-wrought piece on Mr. Turow and his background, in honor of his appearance before the Aspen Writer’s Guild last night.

Mr. Turow graduated from Harvard Law in the late 1970’s and worked as an assistant U.S. attorney and then as defense counsel specializing in defending death row convicts. He believes that crime and the criminal justice system are full of interest and drama. The subject certainly has provided him with plenty of material for his bestselling novels.

But it appears that Mr. Turow has been moving away from the sensational and more toward the personal with his latest endeavor, the sequel to Limitations. Seems hardly a surprise that the subject that the 60-year-old Turow would choose to explore is a man of similar years looking back on his life:

“I’m writing about a substantially different person,” he said. “Rusty is 60, about to ascend to the state Supreme Court, the crowning achievement of his career. He can feel the wings of time, and he isn’t quite satisfied with his life, or even if he has had good fortune.”

Could this be autobiographical? I cannot imagine how Mr. Turow could look back on his life with other than a sense of satisfaction. But then, perhaps life may once again be imitating art, as evidenced by the closing quote in the article:

“It’s what E.M. Forster said: Life goes on, novels don’t. So there’s something artificial about every novel. Any novel is going to be a bit unsatisfying in its conclusion.”