Employer Strategies for Responding to Employee...

Employer Strategies for Responding

to Employee Demand Letters: Legal,

Strategic and Ethical Considerations Evaluating Whether to Settle or Take Preemptive Action;

Determining What to Include or Exclude in Response

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THURSDAY, JANUARY 19, 2017

Presenting a live 90-minute webinar with interactive Q&A

Adrian Hoppes, Esq., Holden Law Group, Auburn, Calif.

H. Scott Johnson, Member, PCT Law Group, Alexandria, Va.

Judith Bevis Langevin, Partner, Zelle, Minneapolis

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Employer Strategies for Responding to Employee

Demand Letters Legal, Strategic and Ethical Considerations

Considerations in Determining Whether to Respond to the

Demand Letter

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Considerations in Determining Whether to Respond… • Legal Considerations

• Signed agreements/contracts in place

• Other legal requirements for a response: • Personnel file requests

• Payroll file requests

• Litigation hold notice

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Considerations in Determining Whether to Respond… • Legal Considerations, cont.

• Investigation of claim – what is the exposure?

• Counterclaims?

• Notice/tender to insurance carrier?

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Considerations in Determining Whether to Respond… • Strategic Considerations

• Status of employee – current or former?

• Opposing counsel reputation and MO

• Professional opinion on: • Company representatives as witnesses

• Company image/publicity issues

• Perceptions of plaintiff

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Considerations in Determining Whether to Respond… • Strategic Considerations, cont.

• Availability of defensive evidence

• Who is the audience?

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Considerations in Determining Whether to Respond… • Ethical considerations

• Confidentiality

• Disclosing confidential information

• Attorney-client privilege (employee level?)

• Competence • Have the legal knowledge and skill to respond?

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Considerations in Determining Whether to Respond… • Ethical considerations, cont.

• Duty to communicate

• Settlement offers

• Scope of representation

• Procedural and legal strategy authority

• Settlement authority

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Deciding What to Include in the

Demand Letter Response

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Deciding What to Include in the Demand Letter Response … • General Outline of a Response

• Introduction

• Response to employee’s version of the “facts”

• Response to employee’s analysis of the law

• Client’s firmly stated position on demand

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Deciding What to Include in the Demand Letter Response … • The Introduction

• Introduction should include

• Description of author

• General summation of author’s/firm’s engagement

• Purpose of letter

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Deciding What to Include in the Demand Letter Response … • Response to Alleged Facts

• Approach depends on desired outcome

• Be succinct

• Be sincere

• Don’t include potentially adverse statements or admissions

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Deciding What to Include in the Demand Letter Response … • Response to Analysis of Law

• Focus on areas of disagreement regarding law

• Highlight weaknesses in employee’s case

• Consider detailing strengths of employer’s defense

• Don’t hesitate to cite case law if helpful

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Deciding What to Include in the Demand Letter Response … • Response to the Employee’s Demand

• Clearly articulate client’s position

• Make sure tone reflects desired outcome

• Balance confidence and reasonableness

• Place opposing counsel on defensive

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Deciding What to Include in the Demand Letter Response … • Common Mistakes

• Over reliance on “For Settlement Purposes” disclaimer

• Failure to bluff wisely

• Losing sight of client’s goals

• Sending response in the heat of the moment

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Deciding What to Include in the Demand Letter Response … • Common Mistakes, cont.

• Bad tone (e.g., inappropriate humor, obnoxious, condescending)

• Trying to “win the case” with the response

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Deciding What to Include in the Demand Letter Response … • General Tips

• Draft letter as if it will appear as a trial exhibit

• Consider preemptive action along with response

• Be truthful

• Get client’s input before sending

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Effective Preemptive Strategies Upon Receipt of a Demand Letter

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Effective Preemptive Strategies…

• Legal Responses to Consider

• Injunctive relief if irreparable harm imminent

• Declaratory judgment • Contract interpretation

• Breach of fiduciary duty or duty of loyalty

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Effective Preemptive Strategies…

• Legal Responses to Consider, cont.

• Claim of malicious prosecution

• Claim of tortious interference with contract

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Effective Preemptive Strategies…

• Legal Responses to Consider, cont.

• Proceed with caution when contemplating assertion of claims

• Injunctive requires showing of irreparable harm

• Declaratory judgment requirements, form may differ state to state vs. federal

• Local courts may disfavor employer “preemptive strikes”

• Benefit and burden of driving the litigation

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Effective Preemptive Strategies…

• Other considerations

• Litigation hold demand to plaintiff?

• Element of surprise, difficulty for unsophisticated plaintiff or counsel

• Critical protection of employee notes and electronic evidence

• Requires employer litigation hold

• What if demand letter contains no litigation hold?

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Effective Preemptive Strategies…

• Other considerations, cont.

• Managing internal communications

• Anticipate employee contact by plaintiff’s counsel

• Prepare managers and supervisors

• Inform other employees of possibility, no obligation, but do not prohibit

• Limit internal discussion to protect privilege

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Effective Preemptive Strategies…

• Other considerations, cont.

• Insurance analysis

• Notice requirement

• Cooperation clause

• Choice of counsel clause

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Effective Preemptive Strategies…

• Other considerations, cont.

• Consider opening negotiations

• The introductory call (without authority)

• Availability of agency mediation?

• Possibility of mandatory mediation?

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Effective Preemptive Strategies

• Other considerations, cont.

• The risk of poorly managed unemployment claim responses

• The risk of retaliation

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Thank You

Adrian Hoppes

Holden Law Group

adrian@holdenlawgroup.com

H. Scott Johnson

PCT Law Group

sjohnson@pctlg.com

Judith Bevis Langevin

Zelle

jlangevin@zelle.com

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