– A strong HR and sound corporate policies can substantially minimize an employer’s risk of litigation.
– Intelligent W2 and 1099 contracts allow employers to control much of the process in case of conflict; don’t copy and paste a (useless) standard employment agreement.
– If litigation is inevitable, select an attorney with a proven track record in corporate litigation and defending employers — and who also does not shy away from using the strategy of offense as the best defense to compel an expedited resolution.
Your Corporate Defense Begins Before Litigation Arises.
Contrary to common conception, a large number of labor law disputes are avoidable. While no mechanism exists that controls people’s behavior and securely governs their conduct, employers — small and large — are ill-advised to believe that there isn’t anything that can stop a lawsuit against your business. There is. Too many employers simply focus on responsive measures and act when a threat of litigation, a civil lawsuit, or a whistleblower action arrives. Then, understandably, they are all mad, often emotional, and quickly realize that even a bogus claim filed against them with the EOCC or in court can trigger thousands and thousands of dollars to defend.
The better approach is prevention. At the end of the day, no matter what a former employee claims — discrimination, retaliation, harassment, unsafe workplace, wrongful termination, violations of the FMLA — it all comes down to them carrying the burden that your company was negligent or reckless in some way. Well, just like a supermarket can install safety mechanisms such as a big yellow sign warning of a wet floor, you, the employer, and business operator should consider demonstrated efforts to show zero tolerance for workplace misconduct and legal violations. Now, there is a big difference between what you have in mind, and what you do, what you show, what you share with your employees. It helps your employees to know about your business philosophy and your diligence and to make sure workers are safe — but also informed upfront about your expectations and guidelines.
In light of tens of thousands of litigation proceedings against American employers each year, you are not a good businessman/woman to ignore the power of company policies, employee rules, and sharing the process in case of unhappiness, suspicious violations, and maintaining a positive and safe work environment. Anyone working for you must understand that employment is not a one-way street, where you, the employer will do everything for your staff — paying salaries, protecting them, caring for them — and they, in return, can turn against you at their will. Legally sound and firm businesses are based on reciprocity and mutual expectations.
Prevention begins with your HR department. Your hiring officer is likely one of the most important persons working for you. HR determines who gets in. Selection begins before hiring, and your HR team should pay close attention to who applies with a history of litigation or conflicts. Troublemakers need to stay outside. With the help of your HR team and outside counsel, you should create rules and procedures that everyone needs to abide by. These rules provide a clear process of how to report misconduct, how to act and behave (both: for management and staff), and how to resolve potential conflicts. Professionally drafted policies are a powerful first line of defense arguments to disprove negligence. If utilized effectively and enforced, these policies are the constitution of your company signaling to everyone who you are and what you stand for.
For example, Covid-19 hit most employers entirely unprepared. While the pandemic was admittedly unprecedented, those employers reacting quickly and using counsel to develop safety rules and minimize future lawsuits for lack of PPE or offering an unsafe work environment are less likely to find themselves in litigation — because they articulated standards and thus showed that they care, and are not indifferent, reckless, or negligent. This does not mean their operations are necessarily perfect; however, if these employers are ever challenged, any judge will understand that they did, as demonstrated in their handbook and policies, whatever they could, i.e. were the opposite of negligent, to exercise good care for their staff.
Have an Experienced Attorney Create Intelligent W2 and 1099 Agreements to Control the Dispute Resolution Process.
No matter your efforts, a guarantee against getting entangled into litigation does not exist. By law, you cannot prohibit an employee from legally challenging you. However, with some nuances across the different states, you should choose the effective language in your employment agreement to reduce the risk of public litigation and the threat of jury trials. For example, in particular with management and 1099 contractors, your attorney should advise you on how to select favorable dispute resolution language, how to select the right forum in case of litigation, how to exclude jury trials, and how to promote an amicable and non-public resolution. Don’t just copy and paste one of these standard employment contracts that have proven so many thousands of times disastrous for employers and companies. If there is an area (besides creating smart policies tailored to your particular industry) where investment into an experienced attorney will pay off big time, it is likely this mentioned area of developing intelligence, conflict preventing corporate W2 and 1099 agreements.
This Is What You Must Expect from Your Company Litigation Defense Lawyer.
If all of these well-intended, preventive measures fail because one of your employees just can’t resist the temptation to seek shelter with a plaintiff’s attorney, you must select an attorney with the right skillset. Your expectations should be high because if your attorney turns out to be a bad choice, you may pay the price by entering an unjustified settlement to overcome your lawyer’s failed defense strategy. First and foremost, your lawyer must have a track record of defending employers. Especially in employment cases, this means that your employer defense attorney knows how to dismiss a case. Excellent writing and advocacy skills and profound familiarity with applicable case law are among the most dominant features of an effective corporate defense attorney. After all, judges do understand that many employment cases lack merit and they want to be convinced early on that this is a case that does not deserve their attention when they already have a busy docket. Conveying this message early, having that ability to subsume the facts under the standards of dismissing a case thus is a key characteristic of an excellent choice.
Sometimes Offense Is the Best Defense.
Recognize that sometimes a case will not settle quickly. Keep in mind that the lawyer representing your former employee is likely compensated on a contingency basis. That means, that lawyers must get money from you, or else law firm and client do not get paid at all. These cases will eventually reach discovery where requests for documents and notices of depositions will take months before the parties reconvene or are ordered by the court to settle. Now, there are two types of settlements from the perspective of an employer: a total surrender or a smart settlement as part of a good business decision. For you to achieve a business-friendly outcome at mediation or settlement conferences, you must position yourself and argue from a position of strength, not weakness.
The best way to do so is to have an attorney who no one wants to go against in court, who has a proven track record in trials, and who everyone knows can convince judges and juries. Your opponent must recognize that even a small settlement may be much better than being deposed by your attorney or losing the entire case in court. It is that type of a litigator and courtroom attorney who understands how to force the other side to settle, and how to minimize exposure — always with the view that the alternative would face fierce opposition in the litigation process. In some cases, that approach also means that your attorney should have no problem considering a counter-lawsuit and taking other proactive steps to get your case resolved so that you can continue building and expanding your business — without that unpleasant former employee sabotaging or paralyzing your operations.
