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
H. Scott Johnson
PCT Law Group
Judith Bevis Langevin
Zelle
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