Presenting a live 90-minute webinar with interactive Q&A 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 THURSDAY, JANUARY 19, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Adrian Hoppes, Esq., Holden Law Group , Auburn, Calif. H. Scott Johnson, Member, PCT Law Group , Alexandria, Va. Judith Bevis Langevin, Partner, Zelle , Minneapolis The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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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 5
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 6
Considerations in Determining Whether to Respond… • Legal Considerations, cont. • Investigation of claim – what is the exposure? • Counterclaims? • Notice/tender to insurance carrier? 7
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 8
Considerations in Determining Whether to Respond… • Strategic Considerations, cont. • Availability of defensive evidence • Who is the audience? 9
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? 10
Considerations in Determining Whether to Respond… • Ethical considerations, cont. • Duty to communicate • Settlement offers • Scope of representation • Procedural and legal strategy authority • Settlement authority 11
Deciding What to Include in the Demand Letter Response 12
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 13
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 14
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 15
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 16
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 17
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 18
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 19
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 20
Effective Preemptive Strategies Upon Receipt of a Demand Letter 21
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 22
Effective Preemptive Strategies… • Legal Responses to Consider, cont. • Claim of malicious prosecution • Claim of tortious interference with contract 23
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 24
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? 25
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 26
Effective Preemptive Strategies… • Other considerations, cont. • Insurance analysis • Notice requirement • Cooperation clause • Choice of counsel clause 27
Effective Preemptive Strategies… • Other considerations, cont. • Consider opening negotiations • The introductory call (without authority) • Availability of agency mediation? • Possibility of mandatory mediation? 28
Effective Preemptive Strategies • Other considerations, cont. • The risk of poorly managed unemployment claim responses • The risk of retaliation 29
Thank You Adrian Hoppes H. Scott Johnson Judith Bevis Langevin Holden Law Group PCT Law Group Zelle adrian@holdenlawgroup.com sjohnson@pctlg.com jlangevin@zelle.com 30
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