Signs of imminent wrongful termination litigation come from many sources—e.g., through internal or informal employee complaints, agency charges, and attorney demand letters. How serious the claim seems to be may vary, but defense counsel’s basic response should always be these three steps.
- Conduct an investigation. After identifying all relevant sources of information, including potential witnesses and documents, take steps to gather and preserve evidence. Consider seeking evidence from interviews with those who decided to terminate the employee as well as those whose opinions contributed to the employment termination or action, such as former supervisors who evaluated the plaintiff’s performance. Interview percipient witnesses and review the plaintiff’s personnel file. During the investigation it’s important to safeguard the attorney-client privilege by advising supervisors and managers that their interviews with you are protected and that they aren’t to discuss the contents or subject of the interview with anyone else.
- Evaluate the plaintiff’s claims. Based on the investigation, analyze the plaintiff’s claims, possible defenses, and the relative merits of each side’s position. Assess the likelihood that the plaintiff’s claims will survive any demurrers, motions for summary judgment, or other defense efforts to dispose of claims before trial. Evaluate the chances for the defense if the case proceeds to trial and, should the plaintiff prevail, the potential size of the plaintiff’s recovery. Because the legal standards applicable to employment actions are constantly evolving, identify relevant issues and conduct research to ensure that you consider recent case law developments.
- Recommend appropriate employer action. After reviewing the applicable legal standards and the employer’s actions, assess how a jury of lay persons, who aren’t expert in the employer’s business and are from the venue where the case would be tried, would apply these standards. Also assess litigation costs and whether settlement makes sense. Then help the employer develop a litigation strategy, including how to respond to the plaintiff’s demand letter. The nature of the employer’s response to the letter depends on conclusions drawn from the investigation and may take the form of offers designed to avoid a court trial or litigation altogether.
Taking these three steps as soon as your client appears to be facing a potential wrongful termination suit will put your client in a prepared position to mount an effective defense. Get details on each of these steps, including a checklist of inquiries that are relevant to obtaining information on adverse employment action to help with step one, in CEB’s Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation, chap 10.
Other CEBblog™ posts you may find useful:
- Should You Go on the Offense Against a Wrongful Termination Plaintiff?
- Settling Employment Cases: Think Beyond Money
- Exiting Gracefully: The Termination Letter
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