Seeking counseling and guidance on how to proceed on everyday workplace issues early and often always benefits employers. Because we are involved early enough to fully investigate and evaluate all potential legal issues based on known facts, we not only recommend how to proceed, but we also help document and ghostwrite carefully-worded communications that the employer will rely upon, if challenged. Moreover, the advice of counsel defense protects attorney-client communications. By retaining employment counsel early, the employer can openly communicate and protect discussions regarding the subject of potential litigation which is priceless. Significantly, retaining counsel early allows also allows you to correct and/or minimize any potential liability and craft solutions that may preclude future litigation, such as entering into a severance agreement. Without a doubt, the costs of consultation before an employment matter erupts outweigh the costs incurred afterwards.
Seeking Guidance at the Onset of an Employment Issue is Simply ... Invaluable
Sherman Law Corporation always recommends that employers seek guidance from them at the onset of an employment issue so that we can be involved every step of the way in decision making, investigations, documentation and communications. The consequences of not consulting counsel early enough include:
- Creating Employer Liability or Precluding Dismissal by Dispositive Motions in Legal Actions. Often times, an employers' actions or inactions prior to retention of counsel can either create employer liability or preclude dismissal of claims based on non-privilege communications between decision makers, non-existent or inadequate documentation or non-compliant investigations to name a few. Where the employer's earlier actions or inactions raise material issues of fact as to any claims raised by the employee, all such claims must be determined by a jury trial. What this means is that the Court cannot grant dispositive motions filed by the employer to dismiss all or part of a lawsuit. Early intervention allows the employer to correct any violations, seek resolution, and if unsuccessful, position the employer to successfully defend the matter if legal action follows which is the best of both worlds.
- Quicker, Less Costly Resolution Before the Employee has Retained Counsel The vast majority of the time, early guidance and counseling result in a quick and less costly resolution to employers because the employee typically has not retained counsel. As soon as counsel is retained, settlement of claims will increase (sometimes exponentially in legal actions that settle just before trial) because the attorney is representing the employee on a contingency basis and fronting costs.
- Violating Employers' Legal Hold, Preservation & E-Discovery Obligations by Non-Compliant Preservation & Collection of Electronically Stored Information (ESI) Puts Employers' Entire Defense at Risk. Evidence that supports or refutes employment-related allegations typically fall into two categories: testimonial evidence (i.e. oral testimony by a witness of his/her first hand observations or communications) and documentary evidence (i.e., handwritten paper documents and digital data). The information, whether it is in paper or electronic form, oral or written, is considered “evidence.” As soon as the employer is on notice of anticipated litigation, employers' legal hold and preservation obligations are triggered requiring in most cases, guidance by counsel.
- Even when paper copies of ESI exist, at least one of the parties will demand production of the digital data, along with specified metadata. Metadata is the historical and ownership information that not only properly authenticates the ESI (i.e. the ESI was not fabricated or altered in anyway), but the metadata provides invaluable information to all parties in legal actions that must be produced when requested. The most common violations that occur by employers who have not retained experienced counsel to direct legal hold and preservation, include:
- Ignoring or not preserving potentially relevant ESI at the time it learns of potential legal action. By the time e-discovery is initiated in a legal action, the employer attempts to collect the ESI, but learns that the potentially relevant ESI that should have properly been preserved, now no longer exists at all, or, in its original native state. Either the ESI was, intentionally or unintentionally, altered, deleted, destroyed, or now has became inaccessible, or otherwise compromised. Unlike paper documents, ESI is subject to change, even on its own sitting on a computer or device. Unfortunately, ignorance of the laws or oops it just happened are no defense.
- Employer's personnel touching the ESI, by opening, copying, moving, altering or adding to the metadata such that it is no longer preserved in its original native state as required by law. For example, copying email boxes without using forensically defensible methods and even opening ESI documents changes metadata on the last time the document was accessed or opened; forwarding emails, texts or photos from an employee's personal cell phone, for example, adds that user’s digital footprint to the original metadata which means the user now becomes part of the chain of communication and a potential witness in the case.
- Custodians of potentially relevant ESI review their own ESI, cherry-pick what they believe is "relevant" information (which almost always excludes exculpatory evidence), and then "transfers" the ESI themselves in a non-defensible manner (such as forwarding emails, transferring to clouds, storage, etc.) to the employer and/or counsel with no documentation of the chain of custody. Unfortunately, there is no second chance in collecting electronically stored information (ESI) evidence in a forensically defensible manner so if not done right initially cannot be undone. Experienced counsel will challenge the admissibility of all such evidence and seek sanctions for non-compliance that can range from monetary to even terminating sanctions.
That One Call May Save You Potentially Hundreds of Thousands of Dollars
The vast majority of the calls we receive occurs after an employer was already put on notice of anticipated legal action. By then, the employer's actions or inactions often result in the above-noted scenarios, with the employee(s) already represented by counsel, and the employer starting out from a defensive position. One call to experienced employment counsel before responding to employment issues and/or taking any adverse employment actions can save you hundreds of thousands of dollars down the line. With one of every two California employers expected to get hit with employment-related claims, it makes no sense to wait.
This is why we encourage you to call us today at (213) 341-4417 as soon as you anticipate or on notice of potential legal action or liability.