As soon as you sense that action is being taken against your organization by an employee or former employee, it’s time to swing into action, says attorney Stephen Harris. When you delay, you increase risk.
Harris, of the law firm Wiggin & Dana in Hartford, Connecticut, delivered his suggestions at a Society for Human Resource Management (SHRM) Employment Law and Legislative Conference.
Here’s what Harris recommends:
1. Notify Insurance Carriers
When action is taken against your organization, be it a hearing, a letter, or a lawsuit, notify your insurance carriers, says Harris—that includes carriers of employment practices liability insurance, directors and officers liability insurance, general liability insurance, and perhaps individual liability insurance. (Harris cited one case in which a company officer was sued and made a successful claim under his homeowner’s policy for a vacation home in Florida!)
Don’t wait for the case to be filed. If you wait too long, your insurance carrier may say, sorry, you didn’t give us timely notice, and you won’t be covered. Check your policy now to see what its requirements and limitations are.
2. Deal with Joint Representation
Most of the time, says Harris, you probably want joint representation. That is, you want your attorney representing both the company and individual managers who have been charged. Generally, you want the individual managers on your side, so that you present a united front in defense. If interests diverge and an individual manager suddenly wants separate representation, professional ethics rules would probably require that your attorney withdraw from the case altogether.
To prevent that from happening, you may have the manager or managers sign a conflict of interest waiver that would allow the company attorney to continue representing the company.
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3. Get Your Attorney Involved Early
Some organizations try to save money by handling agency inquiries and proceedings themselves, calling on their attorney only when a lawsuit is filed. This is shortsighted, says Harris. Remember that a court case, in a sense, is a continuation of an agency inquiry or proceeding. Because you have to live with whatever you say or do with the agency, you want your attorney involved before you deal with the agency.
A typical problem, says Harris, is that the organization gives short shrift to the agency process, and then when they face discovery and court proceedings, their story changes. That change is often enough to prevent summary judgment for the company—which might otherwise have been granted.
4. Engage in Early Fact-Finding
Again, get your lawyer involved, says Harris. He or she can help gather information and is also in the best position to predict what the opposing attorney will do.
Challenge everything during your fact-finding, says Harris. You must do this to get the whole picture. Your lawyer can usually do this better, because it is hard for colleagues to challenge each other.
5. Preserve Evidence
Don’t wait for a discovery request. Don’t limit your interest to the obvious documents. Remember e-mail messages, voicemail messages, supervisors’ “personal” files, notebooks, diaries, and so on.
Remember that the judge may instruct the jury that they may construe missing evidence against your organization, Harris notes.
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6. Lock in the Plaintiff’s Story Early
It’s to your advantage to get the plaintiff’s side of the case locked in early on, suggests Harris. You know what you are dealing with, and you prevent the plaintiff from changing stories on you.
7. Develop a Strategy
After you’ve done a thorough fact-finding and you know the plaintiff’s position, you’re in a good position to decide on the strategy that you will pursue, or at least, to discuss the different strategies available.
In the next Advisor: The rest of Harris’s tips, plus help with all of your key policies.