Employer Strategies for Responding to Employee Demand Letters: - - PowerPoint PPT Presentation

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employer strategies for responding to employee demand
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Employer Strategies for Responding to Employee Demand Letters: - - PowerPoint PPT Presentation

Jul 12, 2023 478 likes •794 views

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

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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

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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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