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Newsbriefs - 6Employment Law UpdateFee Shifting in Employment CasesBy Patrick Gorman and Andrew Haber, Favaro & Gorman, Ltd.Attorneys’ fees may be available in a variety of employment related circumstances. We briefly examinethe various settings and offer our tips on petitions forattorneys’ fees.Payment of attorneys’ fees can shift either by agreement between the parties or because a statute or ruleallows for such shifting. Most litigation arising froman employment contract will relate to the paymentof wages or the violation of a restrictive covenant. Aprovision for the award of attorneys’ fees in favor ofan employer will often accompany restrictive covenants. It is less common for an employment contractto afford attorneys’ fees to an employee who files anaction for wages.Even when the employment contract is silent regarding fees, an employee may seek fees under the Attorneys Fees In Wages Actions Act. 705 ILCS 225/0.01,et seq. The Attorneys Fees Act permits an award ofattorneys’ fees when a claimant has appropriately “setthe hook” by mailing a demand for the owed wagesat least three days prior to filing a complaint to collect those wages under the Illinois Wage Payment andCollection Act, 820 ILCS 115/1, et seq. The claimantmay petition the court for attorneys’ fees if he obtainsa judgment in an amount equal to or greater than thedemand.A number of statutory actions allow for fee shifting,almost exclusively in favor of the employee. Thelegislative design, of course, was to level the playingfield between the employee without resources and thecorporation with limitless resources. Federal employment statutes with fee shifting provisions includeTitle VII of the Civil Rights Act of 1964, 42 U.S.C.§ 2000e-5(k)(prohibiting discrimination in employment); the Age Discrimination In Employment Act,29 U.S.C. § 626(b); the Americans With Disabilities Act, 42 U.S.C. 12117(a); the Equal Pay Act, 29U.S.C. §§ 206(d), 216 (b)(prohibits sex discrimination in wage practices); the Fair Labor Standards Act,29 U.S.C. § 216(b) (minimum wage, overtime pay);and the Uniformed Services Employment and Reemployment Act, 38 §4323(h)(2)(employment rights ofpersons who serve or have served in the Armed Forc-es, Reserves or National Guard). Fee shifting provisions also appear in Illinois employment statutes,including the Illinois Human Rights Act, § 775 ILCS5/8A-104(G); the Minimum Wage Law, 820 ILCS115/12; and the Sales Representative Act, 820 ILCS120/0.01. Note that the federal Employee RetirementIncome Security Act (“ERISA”), governing employeebenefit plans, is one statute that allows the impositionof attorneys’ fees in favor of either the plaintiff or thedefendant. 29 U.S.C. § 1132(g), although presumably an employer or benefit plan seeking fees faces atougher standard than would an employee or participant.Common law causes of action do not allow for attorneys’ fees. The most typical employment claim ofthis sort would be a common law action for retaliatory discharge, brought by an employee who has beenterminated for exercising a protected right. However,an action under the Illinois Whistle Blower Act, oftenbrought as an alternative count in a retaliatory discharge complaint, does afford attorneys’ fees (but notpunitive damages, which are permitted in a commonlaw action). 740 ILCS 174/30.Finally, Federal Rule 11 and Illinois Supreme CourtRule 137 may allow for imposition of attorneys’ feesin the event of bad faith pleading. In any event, theemployment arena is ripe with opportunities to shiftattorneys’ fees.In light of the foregoing, consider the following suggestions in anticipation of your attorneys’ fees: Your attorney – client fee agreement shouldspecify how to manage recovered attorneys’ fees. In your daily timekeeping, bill in small increments, per discrete task. Record all your time,whether you believe it will ultimately be “billable” ornot. It is easier to write off an entry (or have a judgediscount that entry), than to try to reconstruct a timeentry. Be as specific and meaningful in describing thetime entry as possible.Continued on Page 11

Newsbriefs - 750TH ANNIVERSARYCOMMEMORATIVE BOOKLETADVERTISING OPPORTUNITIESThe Northwest Suburban Bar Associationinvites all Members, Advertisers andCommunity Businesses to take part in thisspecial celebrationby sponsoring an ad in theNWSBA50th AnniversaryCommemorative Booklet!Business Card: 50.001/4 Page: 125.001/2 Page: 250.00Event Sponsor:Deadline: 350.00(INCLUDES 1/2 PAGE AD, 1 ADMISSION &INTRODUCTION AT EVENT)All ad copy must be submitted via email to the Associationoffice by Monday, May 24, 2010Riebandt and DeWaFor More Information Contactthe Association Office at:847-221-2601Email: nwsba@sbcglobal.netld, P.C.would liketo congratulateThe Northwest Suburban Bar Assocon 50 Yearsiationof Outstanding Leadership andService in the Northwest Suburbs!8ldewald@r 47-437-0303iebandtanddewald.comSample Business Size Ad(actual size approx. 3.5 x 2)

Newsbriefs - 8Recent DecisionsBy Howard BernsteinSupreme Court Rule 302(b)(6)has been amended to allow appeals from custody judgments indivorce or parentage cases without a special finding when thereare other unresolved issues pending. S.C.R. 306 sets the procedure for filing an interlocutoryappeal pursuant to S.C.R. 304.S.C.R. 307 sets forth the timelimits for filing interlocutory appeals regarding injunctions andthe termination of parental rightsor granting, denying or revokingtemporary commitment in adoption proceedings (in addition toother non-family law matters).RECENT DECISIONSIRMO HEADY, No. 2-09-0022(2nd Dist. 3-1-10)Ex-husband was in arrearsin child support as set forth in thejudgment for dissolution of marriage. The Illinois Department ofHealth Care and Family Serviceswas providing the former wife withchild support services. Ex-husbandfiled a petition for a reduction inchild support because two of thechildren reached majority and priorto hearing, ex-husband’s child support terminated because the thirdchild reached majority. An Orderwas entered for ex-husband to continue making payments until the arrearage had been paid in full. TheDepartment wanted to avail itself ofall remedies available to collect thearrearage that was past due by anymeans. Ex-husband objected to theDepartment acting as a collectionagency because he feared the De-partment might use its methods ofimmediate collection by publishingthe ex-husband as a “deadbeat mostwanted list” or intercepting his income tax refunds. The trial courtruled that the Department could notengage in any collection activitiesso long as ex-husband was in compliance with the repayment plan.The Department appealed and theAppellate Court reversed the trialcourt because each past due childsupport payment was an independent obligation that is a vested rightof the recipient and “is not subjectto reduction as to amount or timeof payment.” Therefore, it was error to restrain the Department fromengaging in enforcement activities.ILLINOIS DEPT. OF PUBLICHEALTH, ex rel BLACK v.BARTHOLOMEW, No. 4-090197 (4th Dist. Dec. 8, 2009)Respondent signed a voluntary acknowledgment of paternitywhen the child was born in 2005.In 2007, the Department issued anadministrative support order. Sixmonths later, Mother filed a petition to establish the parent-child relationship and to enforce the childsupport order. Shortly thereafter,Respondent filed a worker’s compensation claim that was settled in2008. In October, 2008, the courtentered an order for 20% of thesettlement amount to be paid to theMother and reserved whether thebalance of the settlement could beused to pay off the arrears in childsupport. In 2009, the trial court ordered Respondent to use the fundsreceived in the settlement to pay thearrears in child support. Respondentappealed because 820 ILCS 305/21states that a worker’s compensation settlement is not assignable norsubject to any liens, debts, penalties or damages. Appellate Courtaffirmed the trial court stating that750 ILCS 28/15(d) provides that allincome from any form of periodicpayment, regardless of source, including worker’s compensation, isdesigned to ensure that child support judgments are enforced by allavailable means.IRMO PAL v. GUDGEL,No. 4-09-0306 (4th Dist. 1-27-10)Respondent (mother) begandating her boyfriend in 2005. Shortly thereafter, Petitioner (father) filedfor divorce and filed a petition fortemporary custody of the childrenbecause they were spending timewith the boyfriend and were uncomfortable with him. Petitioner,alleged that Respondent’s boyfriendhad been convicted of murder andhome invasion and was a danger tothe children. In fact, the boyfriendhad only been convicted of manslaughter. The trial court grantedRespondent temporary custodyof the children but prohibited herfrom allowing the children to havecontact with her boyfriend. Thecourt also said it would reconsiderthe prohibition if a psychologicalevaluation by a court ordered professional found that the boyfriendposed no threat to the children. Thecost was to paid by Respondent. Afew months later, the boyfriendContinued on Page 11

Newsbriefs - 9Northwest Suburban Bar AssociationAnnual MeetingElection of Officers & Board of GovernorsANDROAST of Sam AmiranteDate:Time:Wednesday, May 12, 20106:00 pm - Open Bar7:00 pm - DinnerLocation: LaMirage3223 Algonquin Rd.Rolling Meadows, IL 60008Price: 65 members 80 non-members(After May 5th: 75.00 members/ 90.00 non-members)Featuring:Allen Gabe as MC andAn All Star Cast of Roasters:Judge James Etchingham, Judge Robert Kowalski (Ret.),Ernest Blomquist, and more.Register Online at www.nwsba.org OR return this form to the Association office.Name:Address:Method of Payment:Credit Card #:Phone #:VISAMCCHECKExp. Date:Mail to: NWSBA, 800 E. Northwest Highway, Suite 418, Palatine, ILFax to: 847-221-2844 Questions? Call 847-221-2601**Only NWSBA members in good-standing can vote in elections

Newsbriefs - 10Northwest Suburban Bar AssociationAnnual Golf OutingThursday, August 26, 2010Time: 12:00 p.m. Lunch12:30 p.m. Shotgun Start5:30 p.m. Dinner & AwardsPlace: Old Orchard Country Club700 W. Rand RoadMount Prospect, IL 60056Price: 120.00 per person( 40.00 Dinner Only)Dress Code:Collared ShirtsNo Tank Tops or JeansR.S.V.P. by Thursday, August 5, 2010to be assured of a spot.Space is limited to 90 golfersCo-Chairs: Joel DeGrazia & Nicholas LagatuttaNameAddressCity/State/ZipTelephonePLEASE CHECK ONE OF THE FOLLOWING:I’d like to pay for myself and the followinggolfer(s) listed below ( 120.00 per golfer)I’d like to pay for myself ( 120.00) butplease put me in a foursome with:Name of Golfer 1:Credit Card Payment: Visa MasterCardCredit Card #Expiration DateName of Golfer 2:Name of Golfer 3:SignatureI’d like to attend the NWSBA Golf OutingDINNER ONLY ( 40.00 per person)Checks and Registration Forms can be mailed to: NWSBA, 800 E. Northwest Highway, Palatine, IL 60074Phone: 847-221-2601 Fax: 847-221-2844Members can register online at: www.nwsba.org

Newsbriefs - 11Recent Decisions Con’t from Page 8filed a petition to intervene and soughtsanctions against Petitioner regarding the terrible accusations of murderand home invasion. The trial court allowed the boyfriend to intervene butdenied his request for sanctions. Twomonths later, the restrictions of contactbetween the children and Respondent’sboyfriend were lifted because of a favorable psychological report. A fewmonths later, the boyfriend filed a petition for attorney’s fees against Petitioner pursuant to Section 508(b). Thetrial court denied the request for feesunder 508(b) because the boyfriendhad been convicted of a serious crime,even if it was only manslaughter, andthe petition to keep the children fromthe convict boyfriend was made fora proper purpose. Additionally, feescould not be awarded under Section508(a) because 508(a) was designed tolevel the playing field between spouses. The sterling character, convict,boyfriend appealed. It was a closecall but the Appellate Court affirmedthe trial court. An intervener is notan opposing party in a dissolution ofmarriage proceeding; the spouses arethe opposing parties. Fees requestedEmployment Law Continued From Page 6 Your complaint should include as much and anydetail that is necessary to trigger an award of attorneys’fees, and at least include in the prayer for relief the following language “ award plaintiff the costs of this action,including reasonable attorneys’ fees.” Assign routine work to subordinates. When itis time to file your petition for attorneys’ fees, a federaljudge is not going to look favorably on eight hours attorney time to photocopy and collate exhibits; however, thatsame judge may happily award eight hours of paralegaltime for the same work.pursuant to 508(b) was not addressedbecause the trial court found that thePetitioner’s underlying petition “slandering” the boyfriend was brought fora proper purpose.Howard Bernstein is a partner atSchwartz, Wolf & Bernstein LLP, inBuffalo Grove and specializes in Domestic Relations and Family Law,Bankruptcy and Real Estate.rates and work that the judge has favorably considered. Ifyour judge does not have such a background, look to otherjudges in that courthouse. In your own affidavit, stress your expertise andexperience and how you were able to utilize that expertiseand experience in the case at bar. Support your petition with the affidavit of an attorney with experience in the area, which establishes prevailing and reasonable rates for the work done. Be prepared to explain why you had to spend 50,000.00 in attorneys’ fees to recover a 25,000.00judgment. Be familiar with any federal, state, local or judgespecific rule relating to your fee petition. As an example,Federal Rule of Civil Procedure 54(d)(2)(B) mandates thatthe pleader specify the judgment and the grounds entitlingthe petitioner to attorneys’ fees. Local Rule 54.3 of theU.S. District Court for the Northern District of Illinoisimplements an elaborate procedure for the litigation offees. Proof the time records and the summary of thetime records. Yes, it is boring, but opposing counsel isgoing to dissect those records in hopes of challenging yourcredibility and reducing your fee. Is the date entry for adeposition a Sunday? Is a court date on a holiday? Is thedescription disproportionate to the amount of time? Be an advocate of your fees in the petition. Youhave won the underlying case, so emphasize defendant’sbad conduct in forcing you to file a complaint, and emphasize your skills, reasonableness and successful result. Understand the procedure your judge will followin conducting the hearing. Ask when the case is set or callthe judge’s clerk. Scrutinize and “clean up” the time entries. If itlooks suspicious to you, you can bet it will look suspiciousto a judge. It’s better to shave off ten hours of weak entriesand bolster the overall credibility of your petition. Know your judge. For federal judges, an onlinesearch should yield much information about the kind of Reproof your time records to be sure there is noconfidential information. At hearing on the fee petition, be prepared tooffer the testimony of anyone identified as a provider ofservices in the affidavit. Don’t rely on the introduction ofbusiness records to prove your fee. Have a court reporter present at your hearing orhave the court enter specific findings regarding fees.

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Newsbriefs - 13Come Celebratethe 50th Anniversaryof theNorthwest Suburban Bar Association!The evening promises to be a great celebrationwith many of our past-presidents in attendance!Several have committed to attending the event.Richard Nelson . John Owens . Dominic Fichera . James Tatooles . Ernest BlomquistSam Amirante . John Scotillo . George Bellas . Stuart Wolf . Sondra Fish . Nancy ScotilloHyman Riebman . Martin Glink . Brian Crowley . Ronald Nelson . Dennis Favaro . Lauren EdidinThomas Ahern . Adra Campbell . Angela Peters . Richard Millerwith more R.S.V.P.’s daily!Join us in commemorating 50 years of traditionin the northwest suburbs!Live Music Provided by:flatcats@flatcatsmusic.com

Newsbriefs - 14During This Month.By: Joseph C. MortonProfessor Emeritus, Northeastern Illinois UniversityDURING THIS MONTH (May) in 1829 the highlyrespected former Chief Justice John Jay died after adistinguished public career as jurist, politician, anddiplomat. Although not well-known today, Jay belongs in the pantheon of our most revered Founders.Born in New York City on December 12, 1745into a family of French Huguenot descent, Jay tookfull advantage of the opportunities his parents provided to obtain the best available classical educationand legal training. Attendance at a boarding schoolwas followed by graduation (in 1764 at age 18) fromKings College. He then studied law and was dulyadmitted to the New York bar in 1768. His 1774marriage to Sarah Livingston (daughter of the politically well-connected William Livingston) and success at the bar ensured a bright future in both politics and the law. Jay soon found himself involvedin the anti-British agitation of the early 1770s. Asan Anglophile, Jay was, at first, a reluctant Patriot.Until July of 1776, Jay was a “reconciliationist” whofavored a return to the system of “Salutary Neglect”(in which the colonies, before 1763, enjoyed virtualautonomy). However, when independence was declared, Jay became an ardent Patriot. During the Revolutionary War, Jay served as a delegate to the Firstand Second Continental Congresses, as chairman ofthe convention that drafted the N.Y. state constitutionof 1777, and as Chief Justice of N.Y. (1777-1778)However, he should be honored today primarilyfor his post-war achievements as a diplomat, a jurist,and a politician. Most note-worthy were his indispensable contributions in negotiating (with BenjaminFranklin and John Adams) the highly advantageousTreaty of Paris (1783) in which Britain formallyrecognized American independence. In 1784 he wasappointed the Confederation’s Secretary for ForeignAffairs. Although not a delegate to the Constitutional Convention of 1787, Jay did favor and work forratification of the Constitution drafted by the “GrandConvention”. He ably assisted the ratification movement first as one of the authors (with Hamilton andMadison) of the widely-read Federalist Papers andthen as a delegate to the N.Y. Ratifying Convention.When Washington was inaugurated as president inApril of 1789, he offered Jay any position he mightdesire in the new administration. After due consideration, Jay accepted appointment as the First ChiefJustice of the United States. His most note-worthydecision was handed down in Chisholm v. Ga. (1793)in which he argued that a statecould be sued by a citizen of another state. In 1794Washington sent Jay to England to negotiate a treatyregarding several issues of contention regarding traderestrictions, impressment of seamen, and evacuation of NW posts. The treaty Jay brought home wasunpopular and highly controversial. In fact its unpopularity led indirectly to Jay’s resignation as ChiefJustice in 1795. Six years as Governor of New York(1795-1801) concluded his exemplary public career.He then happily retired to his estate in WestchesterCounty. It is important to consider in assessing Jay’sranking as a Founder that he was one of the fewFounders who was consistently and vocally anti-slavery. In 1786 he wrote: “It is much to be wished thatslavery may be abolished.To contend for our ownliberty, and to deny that blessing to others, involvesan inconsistency not to be excused”. He served ablyas President of the N.Y. Society for the Manumissionof Slaves (1785-1790). His death on May 17, 1829was widely reported and greatly lamented.Crystal Lake resident Joseph C. Morton is Professor Emeritus at Northeastern Illinois Universityand author of numerous articles and books onAmerican political history.

Newsbriefs - 153 MCLECreditsN ORTHWEST S UBURBAN B AR A SSOCIATIONEmployment Law Committee CLEEffective Use of ExpertsMay 18, 20105:45 pm - 9:00 pmForest View Education Center2121 S. Goebbert RoadArlington Heights 50 members / 100 non-membersAfter May 11, 2010: 60 members/ 110 non-membersSeminar will include a lightdinner and materialsThe seminar will begin promptlyat 5:

The health care debate rages on even though the Health Care bill was passed by Congress along parti-san lines. One of the issues that divides the Congress is the cost of medical malpractice insurance. The health care professionals are decrying that the cost is d