Receiving a Notice of Employment-Related Claim. What should you do first?

You will need to retain experienced employment counsel immediately.  Before you do, it is always best to obtain as much information as you can on the matter before placing the call.  However, before you do, it is important that:                       

  • You do not touch any electronically stored information such as emails, texts, word documents etc.) because you want to preserve the metadata (information about the particular email, such as when it was prepared etc.).  If there are paper copies of the personnel file, payroll/time records, notes or other paper documents (i.e., not electronically stored information such as emails, texts etc.) scan them so you can provide them to counsel.
  • You do not communicate in writing regarding the substance of the matter or complainant because any writings are discoverable.  This means if legal action follows, all written communications regarding the matter or complainant will need to be produced. If the communications are generic such as please copy and scan x’s personnel file, that’s fine.  Once counsel is retained, all internal communications regarding the matter or complainant with counsel will be protected by the attorney-client privilege, to the extent that you are discussing legal strategies and seeking legal advice.
  • You refrain from making any statements, oral, written or otherwise, regarding the complainant or the matter to anyone (except counsel), including, regarding the merits, because it may give rise to a claim for defamation, upon which personal liability lies. 
  • You should prepare a timeline of events and known information regarding the matter addressed “To: Counsel, Attorney-Client Privileged Communications” that is only sent to counsel.  Even if you are still interviewing counsel, any communications are still protected by the attorney-client privilege.  Before your initial call with counsel, it is always best to send the attorney via email a scanned copy of the notice, relevant paper or hard copy documents along with a timeline so that the initial call is a productive one.
Lisa Sherman
California Labor & Employment Attorney