Second of three parts
How many times have you heard the phrase, ``In our litigious society...''? Feared as they may be, we all can agree that lawsuits simply are a fact of life, especially in the business world.
Helping guide the corporate ship through the treacherous waters of litigation is one of the most important tasks of the captain of any business, though he or she isn't alone in that task: That's why God created lawyers.
And when it comes to ``wrongful termination'' lawsuits, there are several approaches-and protections-a company can take when facing such a suit and, perhaps, the inevitable judge and/or jury.
In the first article of this three-part series (Tire Business, Oct. 11), we discussed the anatomy of a wrongful termination lawsuit by covering the following topics:
* The whats, hows and whys of the lawsuit;
* The causes of the lawsuit; and
* Bringing a lawyer into the decision-making process.
This second column will address:
* Other tricks of the trade;
* The investigation process; and
* What to do when the lawsuit arrives.
The third and final column in this series will cover alternative dispute resolution, the discovery process, whether to settle and the trial, post trial and appeals processes.
Other tricks of the trade
As a general rule, terminated employees should leave the business without severance pay.
However, every so often your management-after being brutally honest with themselves-may decide that an employment separation package may be a good idea ``in light of the overall termination circumstances of one or multiple employees.''
It is advisable to give termination packages to employees only if they are accompanied by a signed agreement releasing your dealership from any future lawsuits.
Ask your lawyer about designing a release for your circumstances. There are multiple issues to consider with divergent expert opinions. If the employee is over the age of 40, there is certain language that needs to be utilized in a valid release. Ask your lawyer about the Older Workers Benefit Protection Act (OWBPA): 29 Code of Federal Regulations (CFR) Part 1625.
Some legal opinion suggests this language should be used in all releases. I have not adopted this practice to date and have different releases dependent on if a person is over or under 40. The over-40 language is more extensive. It says the document should be reviewed by a lawyer; has a 21-day review of document time frame; gives the employee seven days to revoke it even after it is signed; and outlines the demographics of the people who were considered for termination and were terminated.
However, if you have an employee or group of employees who are in the ``signing mood'' because they like the severance package, use a release with this additional language included.
In my first article we discussed the reasons a lawsuit may be filed and some viable avoidance techniques. However, in the litigious society in which we live, even if a company has the best up-front termination processes, lawsuits still are filed.
Once you have an idea that a lawsuit may be headed your way, make sure you have an attorney engaged on your behalf. An experienced lead human resource person is able to do a lot of the heavy lifting when it comes to investigation, document requests, etc. But a lawyer needs to review the human resource professional's findings and file the legal responses.
The investigation process
Over the years people have asked me what is the most critical part of an investigation. My answer surprises them every single time. In my opinion, the most critical part of the internal investigation is to have an internal investigator who can obtain:
* All of the necessary information as it relates to the case;
* All of the outrageous stories surrounding the allegation;
* All of the ``this is really not good but I thought you may want to know'' information; and
* Perhaps most importantly, the ``oh my gosh, tell me you are making this up, how could this happen on dealership premises with thinking human beings involved'' information.
Obtaining this information internally or by the dealership's attorney is important in order for you to be able to evaluate your case critically and plan for your defense.
The key to ascertaining this information is to have an investigator who can:
* Maintain a pleasant, friendly countenance-even when inside he or she is thinking, ``Well this isn't good and maybe we should think about settling after all!''
* Show no outward sign of passing judgment on the person being interviewed-even when he or she is thinking, ``So I knew the letter I received from that attorney had outrageous allegations in it...but if he heard what I am hearing right now, he'd be meeting with an architect to design his second home in Naples!''
* Nod in understanding to encourage the person to continue talking (this requires the interviewer to keep from gasping out loud in dismay).
* Make the person being interviewed feel comfortable.
* Make the person being interviewed understand that he or she has done a service for the firm by being honest and forthcoming.
* Take copious notes.
Additionally, if the investigator feels like he or she cannot maintain this level of calm, for any reason, he or she needs to quietly suggest a break time and then find a private place to express all emotions.
In order for an investigator to focus his or her energies on the correct line of questioning, it is important to know what is important to the charging party/plaintiff. The chart below outlines what the plaintiff/plaintiff's attorney will be building their case around.
Once a lawyer is involved, it is imperative that the dealership's employees not talk about the case. This is critical for many reasons. Witness statements will need to be obtained from employees. It is more believable if employees state the facts as they remember them, not as one agreed-upon story.
Additionally, if the plaintiff continues to be an existing employee, it can be difficult to keep emotions in check. It is imperative the plaintiff not be intimidated or retaliated against in any way. However, if the plaintiff requires any discipline, etc., it should be business as usual.
Remember, there is a distinct difference between the amount of information that should be shared with the dealership's internal investigator/lawyer and the information shared during an Equal Employment Opportunity Commission (EEOC) charge investigation. During a charge investigation, the approach should be:
* Give them what they request but don't overload them with information;
* Remember, anything you give the EEOC is subject to the discovery process; and
* Be careful with your wording.
Recognize that very few charges result in a complaint by the EEOC, but they may issue a right-to-sue letter that could result in a private lawsuit. Therefore, keep in mind that the information you share in a response to the complaint could be used in their lawsuit.
What to do when the lawsuit arrives
A lawsuit is delivered to your dealership's door. If you haven't talked to a lawyer about the circumstances previously, get one on the line immediately!
Now the question becomes: What should you be talking about with your attorney? Here are some key items to look for in your interactions with your lawyer once he or she reads the complaint:
Federal or state court: Determine if the case involves federal claims. Those might include issues such as: Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin; the Family and Medical Leave Act (FMLA) concerning family leave; the Americans with Disabilities Act (ADA), involving discrimination based on disabilities; and the Age Discrimination in Employment Act of 1967 (ADEA), which applies to employers with 20 or more employees and prohibits age discrimination against employees 40 years of age or older.
If the lawsuit against your dealership was filed originally in state court, your lawyers might start talking about ``removing the case to federal court.'' Why? They must do it immediately because they only have 30 days to file for a removal to federal court and because federal court typically is a bit more positive toward companies. Listen to your lawyer. See what his or her opinion is on this matter, and if it makes sense, go with it.
Motion to dismiss: Your lawyer should be reviewing all of the elements of the case carefully to make sure they have been properly pleaded. Your lawyer will try to file a motion to dismiss all or part of the complaint if there is any wiggle room.
Suit schedule: State courts generally do not set strict schedules. This, however, can vary by state. Additionally, trial dates in state court are subject to ``being bumped'' by other cases. However, federal courts are quite strict with their schedules and their trial dates are usually fixed and certain.
Insurance coverage: Does the dealership have any insurance to cover the expenses associated with lawsuits?
Educate your lawyer: This is a critical component in your communication with your attorney. Please meet with your lawyer and educate him or her on each and every facet of the case. Remember, your lawyer is on your side! Tell-and give-him or her everything requested.
I can't say this more plainly: You do not want your lawyer to be surprised by a fact regarding the complaint that you ``forgot'' to share.
Your lawyer will need to know the following information about your company:
* An explanation of the real who's who in your firm-provide your attorney with a copy of your organizational chart; also let him or her know who the real decision makers are, if this is different from your organizational chart;
* Policies and procedures;
* Human resources functions, policies, job descriptions, compensation programs;
* History of the business and its form of ownership;
* How the dealership is doing financially;
* Employee files;
* The facts of the case;
* Personal notes that may have been kept about the case;
* Any and all e-mails that may have been exchanged.
If anyone had an affair with the plaintiff, for instance, it would be best to mention it to the attorney now-before the opposing counsel finds the e-mails and presents it to a dealership employee during the discovery process! Remember: There really is no such thing as a deleted e-mail.
Mary Miles can be reached via e-mail at [email protected]
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What's the plaintiff's attorney looking for?
A lawyer devising a strategy on behalf of a dismissed employee in a wrongful termination lawsuit will be looking to hang his or her hat on something. To mount a successful suit, only two or three of the following points-in which your dealership could be found lacking-may be needed. If they find more than that...WOW! They can start making plans to build that second vacation home.
* Inconsistent treatment
* Poor training of supervisors
* Uncaring attitudes
* Failure to follow policies
* Failure to understand and follow the law
* Discriminatory statements
* Arbitrary decisions
* Lack of or outdated policies
* Other lawsuits/claims
* Replacement by someone outside of a protected class
* Direct evidence of discrimination