Empolyee looking for lawsuit

cindyp · August 2002

Can anyone give me advise on this one. We have an employee who is just itching for a lawsuit of one kind or another. He was injured on the job in November. Everything was handled correctly as far as WC is concerned. In January I got a call from OSHA that our employee had reported an unsafe working condition. Thankfully they let me respond by letter and haven't come in to do an investigation. Next I got a letter from an attorney representing this employee wanting a copy of his employee file. We complied. Next another letter from his attorney asking for his work record for past three years! I complied. Now his attorney writes asking for his work schedules for last three years! We don't keep detailed schedules that long. I have about 1 1/2 years but do I have to provide it? Rumor has it that the employee is trying to prove discrimination. He requested a transfer out of the department where he was injured. He works part time there and part time in another dept. He is very unproductive in the dept he wants to transfer to. I told the Store Manager to have him request his transfer in writing. He refused because his attorney told him not to sign anything. UGH! What do you think? Should I send the schedules I do have? I would appreciate input.

Mel in CO · August 2002

I think that my first question would be why does the lawyer want the employee file? What is the employee claiming now through his attorney – discrimination? I think that before any more documents are released, you need to understand why his attorney is asking for all of this information and not just rely on rumors. In addition, I think that I would start consulting with an attorney to represent the organization to understand what type of situation / legal case you may be looking at. I also think that I would give up the work schedules and work with the lawyer (only if the organization’s lawyers agrees). It sounds like from your post that your organization has all of their "ducks in a row" so to speak and you have basically shot him down on each claim that he is trying to make (shot down on OSHA, nothing bad/out of line in the personnel file, nothing wrong with the first year’s work schedule, etc.) and the work schedules that you do have will probably prove that he has not been discriminated against. One thing that I learned from one legal situation that I was in was that lawyers will always ask for more information that is really needed so I wouldn't worry about not having the schedules from the previous three years. It sounds like this employee doesn't have a legal leg to stand on because your company has followed all rules however I would still get an attorney’s opinion. Good luck!

Don D · August 2002

Although some on the Forum will disagree with me, my position is that you have already supplied his attorney with more than you should have. Some say, "He'll eventually get it anyway through subpoena", and, "If you have nothing to hide, why not send it?" Let him subpoena your records. He cannot subpoena your opinions or the possible opportunities his client may have had. He will work you to death going off in all these tangential directions. He is obviously involved in his discovery process and hasn't a clue where he's headed with all this. But, as long as you cooperate and respond to these piece-meal requests, he can continue to bill the client for each letter and you keep his potential case alive because you are compliant. Do not send him another thing accept a kind letter advising him that your company chooses not to comply with his repetitive document requests in the absence of a subpoena. That will alert him that you are not a pushover and that he will have to work a bit harder to build his case, if there is one. If the man has a case, let him present it. Then you can muster your defenses. If the attorney becomes abusive or demanding in any way, tell him to call yours. Keep us posted. x:-)

bsa · August 2002

SURPRISE!! I agree totally with DonD. If you keep supplying documents, his attorney will continue to be a thorn in your side and will eventually find something to persecute you with. If he had a case, he would have presented it by now.

NaeNae55 · August 2002

Don: Don't you think suddenly not cooperating will look like Cindyp has something to hide at this point (and consequently make the lawyer more hungry)?

Cindyp: I think a lawyer of your own is what you should be taking care of right now. Let the lawyer decide what you should supply and what you should pass on. Perhaps a call from your lawyer will let the employee's lawyer know that you are not going to be pushed around and will keep him from going after something he/she really has no business looking at.

Good luck!

Don D · August 2002

>Don: Don't you think suddenly not cooperating will look like Cindyp
>has something to hide at this point (and consequently make the lawyer
>more hungry)?
>
No, I don't think that at all! I think the attorney is revealing his ill-prepared position and utter lack of supporting documentation or evidence for anything at all to pursue. I would not hesitate to put a stop to complying with his endless, apparently pointless production letters. And I would do so in writing. I'll give you five bucks if you can find a lawyer who will tell you otherwise, and if you show me one who says, "Sure, keep on sending him what he asks for," I'll give you ten. x:-)

Theresa Gegen TX · August 2002

Don,

I want 5 bucks. My standard advise in this situation is to evaluate it on its facts. If sending the information is neutral or favorable to the company, I would generally send it. But if the attorney for the employee hasn't identified any claim or any reason they should have the documents, I wouldn't send them. I might ask the attorney to explain what issue the employee has and why they think they need the documents. I also might mention to the attorney that the company has an internal procedure for complaints, and the employee has failed to use it. I don't expect the attorney to give up information, but in most discrimination cases the employee has a duty to exhaust internal procedures. (NOTE -- the attorney would not be allowed to participate in the procedure, but I would make him aware of it).

I don't always want to bring in the lawyers too soon, because quite frankly, lawyers for employees and lawyers for employers don't trust each other (surprize) and don't get along. So I would generally work in the background on this and have the communication come from the company.

As shocking as it may seem, sometimes the lawyer will go away if they realize that there is nothing there!!

The company needs to keep in mind that all of these communications may be admissible in court -- even if they are cloaked in settlement terms. For example, if you get to court and the employee claims that he didn't use the internal procedure because he wasn't aware of how to do it, the letter to the employee's attorney explaining the steps to take and requesting that the employee take them could be admissible. The company needs to be sure that it never makes any factual mistatement in the responses.

Still waiting for payment!!

Don D · August 2002

You made my day! Although it was unintended, I think you and Margaret both just agreed with me, just said it differently. What's that myth you mentioned about a "lawyer just going away"?

Gillian · August 2002

There are times when cooperation makes perfect sense and diffuses a situation. Sometimes, though, it becomes obvious that this hasn't worked and the time arrives where cooperation ceases and you get your attorney to respond. You have reached that point.

Margaret Morford · August 2002

I agree with Gillian. I would have sent the personel file and maybe the work record. Don't send anything else. I'd send the attorney a letter stating that you have cooperated up to this point in order to demonstrate that his/her client has been treated fairly at all times and to allow the lawyer to "evaluate his client's case." The words in quotes should be stated exactly that way. Attorneys get disbarred for bringing frivilous lawsuits. That will tell the lawyer you are now going to play hard ball and that he/she is now personally on the hook if he/she pursues what is a meritless case. I would go on to say that based all all the documents you have provided the attorney, it should be obvious that any suit on the part of his client would be meritless and a clear "abuse of process"(again magic legal words). Any further requests for information should be made to your company's attorney, (list his/her name, address and telephone number). See if that doesn't scare the lawyer off. If it doesn't, you need your attorney involved going forward.

I just realized that I may have agreed with Don D. Well they'll be puttin on parkas you know where!

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

cindyp · August 2002

Thanks everyone for your helpful advice. I replied to the attorney (just before Margaret posted) very simply stating that we cannot comply because we are not required by law to keep old schedules and therefore do not have the information he wishes. Our Owner didn't want to involve the attorney yet. But if I get another letter requesting anything I will use Margaret's "Magic Phrases" and see if that helps. Again, Thanks!

P.S. I received a reply from the Wisconsin DOL stating we do not have to keep old work schedules.

Empolyee looking for lawsuit

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