Wednesday, April 15, 2009

Words Mean Things

I normally try not to bore people with shop talk, but I thought I'd share a work story from today.

Today I tried a case where the Plaintiff sued my client for breach of contract. The Plaintiff was a temp company---companies come to this temp service looking for individuals to hire on a short-term basis. My client signed a contract (which was prepared by Plaintiff's attorney) with Plaintiff, agreeing to pay a certain amount per hour for the temp. The contract also contained this provision (I'm just using Plaintiff and Defendant to identify the parties): "If Defendant hires an employee of Plaintiff within 90 days of the employee's last day on assignment, then Defendant will pay Plaintiff a conversion fee, which is calculated by . . . ."

The temp that was assigned to my client worked for about six months, until one day my client was rather late on a bill it owed to the Plaintiff (no dispute about this). Plaintiff called the temp and told him, "walk off the job; these people aren't paying us. Come back to our office and we'll try to find you another assignment." The temp didn't like the idea of being told to walk off the job (though he did it) and really didn't care for the possibility that the Plaintiff wouldn't be able to find him work, so he told the lady working for Plaintiff who called him that he quit.

After he quit he called my client, told her the story, and asked what to do with the office keys he'd been given. Several hours later, my client (the Defendant) called the temp back and asked him if he wanted to simply come work for Defendant. He agreed, and Plaintiff sued.

This case turned on the meaning of the word "employee." What is an employee? Do you interpret the document to capture its spirit and intent---Plaintiff clearly didn't want Defendant to hire the temp---or do you go with the basic and plain meaning of the term employee, regardless of the consequences?

I argued that (1) the contract must be construed against Plaintiff and in favor of Defendant (meaning that presented with two reasonable interpretations of the document the tie goes to the person who didn't write it), and (2) that the temp was no longer an employee of Plaintiff when my client hired him.

That the contract must be construed against the Plaintiff is black-letter law, and was a near given. However, I almost felt Clintonian disputing about the word "employee."

So let me tell you how it went. I have the president of Plaintiff on the stand and we have the following exchange:

Me: "Mr. G, how long have you been in the employee-staffing business?"

G: "18 years"

Me: "During that time have you come to an understanding of the meaning of the word 'employee'?"

G: "Yes."

Me: "What is the definition of the word 'employee'?"

G: "It's someone who has a job."

Me: "Fair enough. If was working for you, and I told you, 'I quit,' would I still be your employee?"

G: "No, but I'm not aware of Joe [the temp] doing that."

Me: "Are you saying you're not certain whether Joe still works for you?"

G: "As far as I'm concerned he hasn't quit."

Me: "Well, when was the last time he received a paycheck?"

G: "May 31, 2007."

Me: "Do you have a lot of employees you haven't paid in two years?"

G: "Well, sometimes there can be a gap between assignments."

Me: "Do you have workers compensation insurance with your company?"

G: "Yes."

Me: "Is Joe listed on your comp policy as an employee?"

G: "No."

And so it went.

I then put Joe on the stand who testified that he did, indeed, quit Plaintiff before being hired by Defendant.

Now everybody agreed that the purpose of the above-quoted contractual provision was to prevent companies from stealing staff from the temp service. But the issue before the Court (at least the way I presented it) was whether Joe was an employee of Plaintiff at the time he was hired by Defendant.

Well, the judge bought what I was selling and held that the contract did not preclude hiring former employees of Plaintiff.

So how much money was involved? The conversion fee was about $5,000. But the attorney fees sued for amounted to $18,000. Zilch on those claims. (I must note that the did owe about $500 on an outstanding invoice which we have to pay, and minimal attorney fees were awarded on that claim, but we had already offered $2,500 to settle which was rejected). The judge was a little annoyed that such a low-value case was taking up his whole day, but I think justice was served.

Morals of the story: it pays to go into any business that exists solely due to depravity (funeral homes, lawyering, doctoring, etc.); and just as we spent hours and hours arguing over what the meaning of "employee" is because the outcome of the argument had pecuniary implications, so too should we be careful to properly interpret Scripture, not by making frivolous arguments about minutiae, but by diligent study of the Eternal Word of God. It's actually kind of convicting that I spent so much time memorizing ridiculous provisions in this contract, and have memorized no Scripture this week.

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