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Congrats on winning! Do you really want attorneys’ fees?

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in Compensation and Benefits,Discrimination and Harassment,Human Resources

Sometimes, when an employee files a frivolous suit, it’s tempting to seek payback. If you succeed in getting the litigation dismissed, why not insist the losing employee pay attorneys’ fees and court costs? After all, he just cost you unnecessary time and money. 

The law allows employers that win to recover those kinds of fees if the case meets strict requirements. But even in seemingly egregious cases, courts generally hesitate to make employees pay. Before you throw good money after bad, consider whether you want your attorneys to spend even more time trying to get the employee to cough up.

Recent case: This case seemed like a slam-dunk. The Riverside Township School District had caught employee Charles Weisberg in what seemed like a bald-faced lie when he sued for disability discrimination. Weisberg sued after a wooden speaker cabinet fell on his head and caused what he alleged was “post-concussion syndrome.” Weisberg asked for accommodations, including being excused from chaperoning school events because he said the concussion made the noise intolerable.

School officials set out to learn whether Weisberg was truthful about his symptoms, which included severe fatigue and noise aversion. Imagine their surprise one Monday night when they trailed him to the Meadowlands—where he tailgated and attended a New York Giants football game before returning home well after midnight.

The school district’s attorneys asked Weisberg what he had done that Monday evening. Weisberg said he had watched the game at home. When confronted with the truth, he blamed neurological injuries for his faulty recollection. He said he sometimes experienced “false memories”—such as thinking he had watched the game on TV.

The trial court threw out Weisberg’s case. Then the school district asked for costs and attorneys’ fees. It argued Weisberg had brought the case in bad faith. But both the trial court and the 3rd Circuit Court of Appeals refused to award the fees. Both courts said there was enough dispute over whether Weisberg had memory problems to put his bad faith in question. The employer collected nothing. (Weisberg v. Riverside Township Board of Education, No. 06-4190, 3rd Cir., 2008)

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