Since this is an employment law blog, I suppose that I ought to try to draw a relevant lesson on how management should handle such things.  Well, in my view the best approach is that you can't really stop it, so accept the good-natured ones with a smile, and ignore the angry ones --- it will blow over quickly.

My bride returned home in due course, and about three weeks later those elusive voice mails all showed up simultaneously.  Ain't technology grand?

I've seen the same kind of delays from time to time over the years, but they have become less frequent.  I have used another cell phone carrier for many years now, and maybe that has something to do with the improvement, but problems still occur from time to time.

Yesterday I was reminded of that first experience.  Having been reprimanded days ago by both a client and my son for failing to return calls, the offending voice mails both showed up on my cell phone this morning, fully a week after they were left.

Lawyers are in a service business, and our success depends upon our ability to respond promptly to our clients.  It's easy, as we pilots say, to cruise along "fat, dumb and happy" while storm clouds are gathering.  We can't be mind readers, but we can be proactive about checking in with our clients.  So pick up the phone and make contact.  The voice mail you leave could take quite a while to get where it's supposed to go, and that could leave someone important wondering why you haven't been in touch.

For the past 17 years, under a case called Rendine, attorneys who represent plainitffs under contingency fee agreements in fee-shifting cases under NJ law have been permitted to seek enhancements of their fees under certain circumstances.  For instance, if the base fee is $100,000, and the court decides that a Rendine enhancement of 25% is appropriate, the attorney's fee becomes $125,000.  The theory is that allowing fee enhancements incentivizes attorneys to take on difficult cases, or ones that seek to vindicate important policies, where there is a significant risk of non-payment.

The law in NJ seemed settled.  Then enter the US Supreme Court, with its 2010 decision in Perdue v. Kenny A, a civil rights case.  The Court there held that fee ehancements are only appropriate to award superior attorney performance in extraordinary cases.  That standard is far more restrictive than the Rendine standard, and it is undeniably the law of the land in cases that are decided under federal law. 

The Perdue standard then seeped down into a couple of cases decided under NJ state law.  In the Walker and Humphries cases, panels of the NJ Appellate Division adopted the Perdue "extraordinary circumstances" test to deny fee enhancements to successful plaintiffs, who appealed.

In no uncertain terms the NJ Supreme Court reversed the Appellate Division, holding that

the mechanisms for awarding fees, including contingency enhancements, that we adopted in Rendine shall remain in full force and effect as the governing
principles for attorneys’ fee awards made pursuant to fee-shifting
provisions in our state statutes and rules.

Take that, US Supremes!

The opinion is long, but it is required reading for attorneys who handle contingency cases.  It clarifies all of the standards that are used to award fees in contingency fee cases, not just fee enhancements. Among other things, folks, there is going to be little excuse for not keeping detailed, contemporaneous time records --- if you want to get paid.

There's a good chance that we're all going to be citing to Walker and Humphries from now on.  Rendine will still be cited, but we'll be arguing the cases decided on January 25, 2012.

The program, called the Basic Skills Workforce Training Program, is offered through a consortium of New Jersey's community colleges.

It offers training in computer skills, communications, mathematics and measurement, and English as a second language.  And did I mention that it's free?  All the employer has to do is pay the employees who are being trained at their regular rate.

My firm took advantage of the program a few months ago to upgrade our word processing capabilities, through our local institution, Raritan Valley Community College.  We were very happy with the quality of the training and will likely use it again soon.

If your business is in New Jersey, you should check this out.

If you have any doubt at all, it's best to get help.

(H/T Accountant Gail Rosen of Martinsville, NJ)

The new rule is NJAC 12:56-7.2, and it can be found here.  The new rule grew out of the Christie administration's initiative to cut red tape and duplicative regulation. 

The practical effect of the new regulation --- in addition to simplifying compliance for employers --- should be to increase the number of workers who are exempt from the overtime regulations, and thus reduce to some extent employers' obligations for overtime pay.  It is not clear, however, how much employers will benefit since it is difficult to know how many employees who were non-exempt under NJ law will have their status changed by the new definition.

Note, also, that the new regulation does not adopt the federal standard for governmental workers.

Click here for the revised form.

The facts that the plaintiff presented in Ingraham were sympathetic.  The plaintiff's teenage daughter, a talented, accomplished, and popular girl, died tragically while still in high school.  Her mother, of course, was distraught.  She kept reminders of her daughter in her cubicle at work, including pictures and a pair of ballet slippers.  She talked frequently with co-workers about her daughter, so much so that a year and a half after the fact her colleagues complained to management.  While sympathetic to her situation, they felt that they had said all that they could.  The situation was affecting workplace performance.

A supervisor spoke with plaintiff.  Among other things, he instructed her to remove the pictures and ballet slippers, and (in response to plaintiff's question) to "act [as] if [her daughter] did not exist."

Plaintiff became extremely upset, went to a cardiologist for an angioplasty, and eventually quit.  After filing suit, her claim for IIED was the only one of three counts that came before the court for decision.

Among other things, the plaintiff argued that the "power dynamics of the workplace" should lessen her burden of demonstrating that plaintiff's conduct was extreme and outrageous.  The court rejected that argument.

The law provides no different standard of proof that applies in the workplace from other places where emotional distress might result. The employer-employee relationship is no more special and conducive to emotional distress than, for example, a doctor-patient relationship, the relationship of a decedent's family to a funeral home, the tense relationship of a precarious tenancy where homes might be lost, or the relationship of a husband and wife in a hostile divorce.  Indeed, the workplace has too many personal conflicts and too much behavior that might be perceived as uncivil for the courts to be used as the umpire for all but the most extreme workplace disputes. We have previously said that conduct in the workplace will rarely be so egregious as to give rise to a claim of intentional infliction of emotional distress. In Griffin, supra, we stated: "Except for the kind of aggravated discriminatory conduct involved in Taylor, 'it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress.'

And so, as far as IIED cases are concerned, the status is quo.  The court declined to lower the plaintiff's burden of proof to account for the "power dynamics of the workplace."  This seems to have been an attempt by plaintiff to import a similar comment from sexual harassment law. 

While the risk to employers from IIED claims has not been increased, neither has it been reduced.  While rare, it is possible for an employer to lose an IIED case.  For this reason, employers are well-advised to continue to investigate complaints, document problems, and establish and follow sound HR procedures.