Employers are encouraged to take preventative measures to avoid employment claims by providing employees with up-to-date handbooks that outline the employer’s policies regarding hiring practices, misconduct, and payment of wages. Employers also need to apply their policies with fairness and consistency. However, lawsuits may still arise. It is critical for employers to understand when to contact a litigation attorney to respond promptly and effectively on behalf of the employer. Thus, when an employer receives a summons, subpoena, demand letter from counsel, or notice of a lawsuit, discrimination charge, or administrative hearing, it is advisable immediately to contact and retain an outside attorney for counseling and potential representation in the action or proceeding. This article will describe the types of claims an employer might expect to be confronted with, and when an employer is encouraged to contact an attorney trained in litigation and government administrative proceedings.
General Considerations
Claims against employers may be asserted by current and former employees who believe their rights have been violated. It is important to understand that applicants can also file a lawsuit against an employer for various reasons, typically when the applicant was denied employment but believes the denial was for an illegal reason such as discrimination.
Other times, federal and state agencies may bring administrative charges of discrimination and retaliation against employers. The Equal Employment Opportunity Commission (EEOC) can bring such charges against nongovernmental employers with 15 or more employees for violating Title VII of the Civil Rights Act of 1964, the Pregnant Workers Fairness Act, the Americans with Disabilities Act, or the Age Discrimination in Employment Act.
State agencies such as the New York State Department of Labor (NYSDOL), Connecticut’s Commission on Human Rights and Opportunities, California’s Civil Rights Department, and New Jersey’s Division of Civil Rights can also bring administrative charges and conduct investigations against employers who are accused of violating an employee’s labor, civil, or human rights. In many cases, before a claim is filed in court, employees are expected to exhaust their administrative remedies.
Filing a complaint with federal and state agencies is not limited to claims of discrimination or retaliation. Charges may also be brought when an employer is noncompliant with government agency regulations. For example, the NYSDOL oversees wage regulations in New York to ensure employers are paying employees their earned wages and paying assessments for unemployment insurance. When the NYSDOL receives a complaint for unpaid or withheld wages, it can assist the employee in collecting their compensation. New Jersey’s Department of Health can hear complaints that allege employers are noncompliant with public health regulations. On the federal level, the Occupational Safety and Health Administration (OSHA) receives employee complaints about hazardous working conditions that may require it to investigate the workplace.
When to Contact a Litigation Attorney
As mentioned, preventative measures such as effective employee training, establishing workplace policies, and monitoring the ever-changing federal and state employment laws are excellent proactive steps employers can take to mitigate the risk of litigation. Many claims can be avoided with proper human resource policies. This means applying employee handbook policies in a fair and consistent manner, providing employees with performance reviews, and continuously and accurately documenting corrective actions to improve workplace behavior. With these practices, employers can clearly communicate their expectations to employees and minimize the risk of lawsuits or complaints. Nevertheless, despite best efforts, employees may still file or assert claims. The following is a description of the basic variations to expect.
- Demand Letters from Attorneys
A “lawyer demand letter” is a document written by an attorney who represents a former employee or a current employee in their claims against the employer. A demand letter is often the first communication an employer receives about a claim and may be the predicate to filing a lawsuit or administrative charge. Demand letters may ask for payment of a specified sum of money to pay for alleged damages. Often a demand letter may include a “litigation hold” that requires the employer to preserve relevant documentation and information that may be used in anticipation of litigation. Whether the demand letter is seeking compensation, requesting information, or asking for some other relief, a litigation attorney can help formulate an appropriate response, avoid legal action, or reduce the employer’s exposure to liability.
An employer may want to consider complying with the demands, negotiating a settlement to avoid a lawsuit, or contesting the demands. An attorney can assist an employer in weighing the risks and benefits of each option, while also assessing the merits of the claims asserted against the employer. A response to a demand letter that is written by an attorney can also provide heightened credibility and legitimacy, and strengthen an employer’s position by ensuring that all relevant legal arguments and facts are included in the response. At the same time, counsel will assist in helping the employer avoid making any damaging admissions in the response.
- Court Litigation
Consulting with an employment litigation attorney is crucial when an employer is served with a complaint in a lawsuit filed in court. In the early stages of litigation, the procedural steps of a lawsuit and filing a timely response to the complaint can avoid unwanted consequences. Failure to respond to the complaint within the required time could result in a default judgment against the employer. Monitoring deadlines and timely filing the necessary documentation is the initial step in a legal proceeding that should be taken very seriously because it frames the factual and legal issues, and it sets the tone of the litigation.
In general, a defendant may respond to the Complaint with an Answer, or may file a motion to dismiss on legal grounds. After analyzing the Complaint and consulting with the client, counsel will recommend whether to file an Answer or seek dismissal. If an Answer is filed, the employer must admit or deny each allegation, or allege it has insufficient information to admit or deny. An allegation in the Complaint for which no response is provided will be deemed to be admitted, demonstrating further how important it is to pay careful attention to responding to the Complaint.
If an Answer is filed or the complaint is not dismissed by a motion, the case proceeds to discovery, which is the exchange of information whether through documents or testimony at a deposition. Litigation counsel will work with the employer on this stage of the case, which tends to be time consuming but very important to the ultimate outcome. Through all stages of the case, counsel will assist the client to determine if and when the client should explore whether the case can be resolved through settlement. Finally, if no settlement is reached (which is the minority of cases), litigation counsel will prepare the case for trial and represent the employer at trial.
- Complaint Filed with a Government Agency
When employers are notified that a complaint or charge has been filed against them with a federal agency such as the EEOC or a state or local agency, working with a litigation attorney is important for developing an effective defense and navigating the administrative process. With the help of a litigation attorney, employers can better strategize a legally and factually persuasive defense against the charge. Administrative claims also require the employer to respond with a position statement and any supporting documentation. With the help of a litigation attorney, employers can better gather the necessary facts and documentation to build a formidable defense against the charge.
- Public Relations Management
Not only are litigation counsel trained in defending an employer in court or through an administrative charge, but attorneys are also exceptional communicators. While most employment claims do not result in media coverage, reputational risk can have significant and rapid impact on an employer. In the event there is media or public scrutiny, litigation counsel can help to formulate a public relations strategy.
Takeaway
Employers must navigate a complex landscape of employment laws and regulations, making it essential to understand when to seek legal counsel. Contacting a litigation attorney is crucial when served with a demand letter or lawsuit, and complaints or charges filed with or generated by federal, state, or local agencies. While proactive measures can reduce the likelihood of litigation, they cannot eliminate it entirely. By consulting with our Firm early on, employers can ensure they respond effectively to legal challenges, protect their reputation, and maintain organizational integrity. This strategic approach not only mitigates potential risks but also reinforces the employer’s commitment to lawful and fair employment practices.