Recent Gender Discrimination Verdict Highlights Risks To Employment Attorneys

The recent verdict in the Ellen Pao trial (against her employer for gender discrimination) highlights the risks employment lawyers face in trial. Pao sought nearly $16 million in lost wages and millions more in punitive damages. Had a verdict been returned in her favor, her attorney, Alan Exelrod, could have also petitioned the court for attorneys’ fees, estimated to be in the millions.

While attorneys’ fees are widely available in successful employment claims, they are often criticized by employers for encouraging litigation, in spite of the strong public policy that support attorneys’ fees.

While Pao’s case was in the millions, many times the recovery of wages for low-wage workers can be small. Without attorneys’ fees, employment attorneys working on a contingency fee basis alone would otherwise be dissuaded from pursuing a low-damages trial.

However, sometimes the smallest recovery can be the most important to employees. In my own practice, a recovery of $500 against an employer who wrongfully withheld $500 can make all the difference to an employee’s ability to pay rent, a cell phone, gas, food, etc. A small recovery may also represent the end of an illegal wage practice.  Imagine an employer who requires employees to work “off the clock.” or denies rest-breaks or meal periods.  In total, these damages may not amount to millions, but pursuing recovery of these small claims ensures workers are paid correctly under the law.

These attorney fee statutes for wage cases are designed to permit employees to recover full wages where legal fees would greatly exceed the underlying claim.[1] The purpose of the fee award is to “ensure effective access to the judicial process by providing attorneys’ fees for prevailing plaintiffs with wage and hour grievances”.[2]

[1] See, e.g.: Brandt v. Impero, 1 Wn. App. 678, 682, 463 P.2d 197 (Div. I, 1969).

[2] Fegley v. Higgins, 19 F.3d 1126, 1134-35 (6th Cir. 1994).

Should Emojis Be Used as Evidence in Court?

Last week, The New York Times reported on the trial of accused online black-market operator Ross W. Ulbricht. Adding to the fanfare of the trial is an unusual debate over the admissibility of emojis supposedly sent by the defendant.  The debate has drawn interest from journalists, legal scholars, and the public alike and is one of a number of new technologies being debated in the courtroom.

Created and first used in Japan, emojis literally means “pictures” and can be used to communicate a variety of emotions. Tyler Schoebelen, a Stanford trained linguist who has written scholarly works on the meaning of emoticons, writes in the article:

"If it’s a ‘winkie,’ there’s flirtatiousness or a sort of a fun to it,” Mr. Schnoebelen said. “With smiles, there might be a politeness or a friendliness. If there’s a ‘frowny’ face, it’s indicating you don’t like what’s happening."

Although the emoji or emoticon’s admissibility may be helpful in conveying to a jury the meaning behind certain communications, they can also cause confusion.  A current case is pending before the US Supreme Court, where a man was convicted of making threats to murder his wife, but which he claimed were made in “jest” by use of a face with a tongue sticking out.

UPDATE: On February, 4, 2015, Ross W. Ulbricht was convicted on all seven charges in a Manhattan district court. His sentencing is scheduled for 15 May, although his defense attorney, Joshua Dratel, has promised to appeal today’s verdict.