What will you do if your business is served with a lawsuit or discrimination charge by a current or former employee? A few simple steps can help keep your legal costs reasonable, say the attorneys at Holland & Hart LLC, writing in the Nevada Employment Law Letter.
If you follow their 12 suggestions below, you’ll assist your lawyer in handling employment disputes efficiently, say the attorneys, who are members of the Employers Counsel Network, a select group of lawyers from all 50 states and Canada.
Here are their twelve tips:
1. Plan Ahead
You can be served with a lawsuit or discrimination claim via the mail or they may be sent to your company’s registered agent or left with the receptionist. Front desk associates and employees who are in charge of receiving and sorting mail should be trained on what to do with any legal papers that come in the door.
Every lawyer can relay horror stories about papers alerting them to a lawsuit that got misfiled or languished in a pile on someone’s desk. The consequences can be dire!
2. Find the Right Attorney
All lawyers don’t do the same kind of work. The attorney who drafts your business documents may not be the best person to consult about employment disputes. Get to know which lawyers in your area specialize in employment law.
3. Notify Your Insurance Company
Many employment claims are covered by employment practices liability insurance, which is sometimes part of an employer’s liability policy. The insurance company may want to choose the lawyer to represent your company. If you’re served with a lawsuit, you should immediately check to see if your insurance covers the claims asserted against you. Call your agent and notify him or her of the lawsuit.
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4. Talk to Your Lawyer Right Away
Once you’ve received the lawsuit or charge of discrimination, don’t take any action until you speak with an attorney—but don’t wait too long! If you’re served with a lawsuit by a process server, you’ll likely have only 20 days to answer the complaint. If you’re served by mail, you may have only 10 days to respond to a charge of discrimination. If you miss the deadline, you could be in real trouble.
5. Get Organized
Lawyers generally charge by the hour. Since you probably don’t want to pay your lawyer to put your files in order, it pays to do some work on your own. You should gather all the files and documents that are related to the employee and the case.
- Find the employee’s personnel files, but don’t add anything to or take anything from them.
- Notify everyone involved that they shouldn’t change or destroy any documents, e-mails, or electronically stored information, even if it’s slated to be destroyed under your document-retention policy.
- Gather all your employee handbooks and policies, but don’t make decisions about what is relevant. The lawyer can do that. Include everything you can find that is related to the employee and the allegations he or she has made.
- Start a file for the lawsuit or charge. Keep it separate from regular employment files, and mark it “confidential.” You’ll be putting all the correspondence from your attorney and the papers that are filed with the court or administrative agency in the file, so be sure to keep it locked up.
6. Prepare your Presentation
You’ll want to give your lawyer a clear picture of what happened. It may be helpful to create a chronology of events so you can explain what occurred in a logical fashion. Include the employee’s date of hire, salary history, and any promotions, demotions, or disciplinary actions. Include the names and titles of any supervisors or other employees who are involved. If the employee has filed any grievances, those should be included along with his date of termination if he is a former employee. Include the information in a memo to the attorney and mark it “confidential attorney-client communication.”
7. Make the Most of your Meeting
When you do meet with your lawyer, come prepared to discuss the case. Make sure your attorney has everything that has been served on your business as well as all the documents and information you’ve gathered. Bring your business card so that your contact information can be put in the file, and give your attorney the names and contact information of other individuals who might be involved in the investigation and defense of the claim. Clarify whether your lawyer will want to communicate with you by telephone or e-mail, and set aside enough time to respond to his or her questions and information requests.
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8. Maintain Attorney-Client Confidentiality
The attorney-client privilege protects communications between you and your attorney, but not all communications are privileged. For example, your attorney can’t be asked about facts you’ve provided to assist him or her in representing you. Similarly, you can’t be asked about legal advice your attorney has given you. The privilege attaches to documents and oral communications, but it can be lost if the information is shared with third parties or employees who aren’t involved in the matter.
In tomorrow’s Advisor, more tips plus an introduction to a unique HR problem-solver, BLR’s SmartPolicies.
Be sure you document your notification to the insurer, in case there’s a dispute later over coverage.
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