As a practitioner of preventive law
for employers, I have some suggestions that will help keep down your legal
bills as well as help me make the best presentation of your case. Five are discussed here, and the remaining five
will be discussed in a future post.
1: Be prepared.
Works for the Scouts, and it should
be your motto, too. Do the employees who
receive and distribute the mail know what to do with any legal papers that come
in? How about the receptionist or front
desk person? Be sure they all know to
promptly give any such papers to you or the person you designate. I, and most lawyers, could tell you horror
stories about clients calling in a panic because papers alerting them to a
lawsuit were sitting on someone’s desk until the time to respond was about to
expire—or had already expired.
2: Call your insurance company right away.
Some employment claims are covered
by employment practices liability insurance, which is sometimes part of an
employer’s liability policy. Under NJ
law, workers’ compensation insurance might cover some allegations of sexual
harassment. If you’re served with a
lawsuit, call your insurance agent and notify him/her of the lawsuit. If the claims against the company are covered,
and depending on the terms of the insurance policy, the insurance company may pay
for—and therefore, choose--the lawyer to represent your company.
3: Next, call your lawyer.
If there is no insurance coverage
for the claims against you, you’ll have to retain an employment law attorney to
represent your business. Don’t
delay! If you’re served with a lawsuit
by a process server, you’ll likely have only 35 days to answer the complaint. If you receive a wage and hour complaint in
the mail, you probably have only 10 days to respond. If you miss the deadline, the court could
enter a default against your company, which means real trouble.
4: Then, get organized.
Defense lawyers, me included, charge
by the hour. Since you don’t want to pay
me to put your files in order, you should do that work before our first
meeting. You should immediately gather and
preserve all the files and documents—including emails and other electronic
records--related to the employee or the case. Include everything you can find that is
related to the employee and the allegations she/he has made. Please don’t make decisions about what is
relevant—let your lawyer do that.
You should also notify employees
that they shouldn’t change or discard any documents, e-mails, or electronically
stored information related to the employee or the case, even if the records are
scheduled to be destroyed under your normal document-retention policy.
I always ask my clients to give me a
timeline of events. Start with the employee’s
date of hire, unless the suit involves the hiring process. In that case, start with the advertising or
posting of the job. Continue with salary
history, and any promotions, demotions, grievances, and disciplinary actions, and include the date of
termination if the plaintiff is a former employee. Make sure to include names,
dates of hire, and titles of any supervisors or other employees who are
involved in the case.
5: Start thinking about a settlement.
When you are served with legal
papers, you’ll probably feel angry or defensive. That’s perfectly normal, especially if you
think you haven’t done anything wrong. But, as time goes by and legal bills come in,
you’ll realize that the case is taking up a lot of time, money, and energy that
might be better spent on your business.
In New Jersey, almost every employment
suit is sent to mandatory mediation by the court. The in-person session, in front of a
court-appointed mediator, is scheduled early in the case, before either side
has invested a lot in it. Bear in mind
that more than 95% of civil lawsuits settle or are otherwise resolved before
trial, and recognize that a settlement is a compromise. As the late Hon. John W. Devine, the federal
judge for whom I clerked, used to say, “A good settlement leaves both sides equally
unhappy.”
Next time: More ways to keep your legal bills low.
