In spite of the overall downward trend in the total number of litigation charges last year, widespread recovery from the pandemic has resulted in a barrage of employment lawsuits in 2021. In Ohio, for example, there were around 400 lawsuits in a single two-week period. The blitz of filings could be attributed to businesses reopening post-COVID, but it’s more likely that the many employment laws getting passed have created new opportunities for employees to sue.
In light of changing circumstances and evolving legislation, many plaintiff’s attorneys have been filing suits without notifying the defending employer. In other words: employers are finding out they’ve been sued without any warning. That’s right - no more pre-litigation letters or settlement discussions.
Luckily, there are actions you can take to fortify your defense when getting sued. Let’s discuss the critical steps your business will need to take should an unexpected lawsuit occur.
How to Respond to Getting Sued: 6 Steps for Employers
Even if you are guarding against wage and hour lawsuits and discrimination claims with strict standard operation procedures (SOPs), legal situations can still arise. When they do, you’ll need to take the following steps as soon as possible:
1. Stay watchful for all legal paperwork. It’s important to wait for ‘service of process’, or the bestowal of paperwork that institutes a lawsuit. If your business has a statutory agent, they may be the ones to receive ‘service’, but that is not guaranteed. Notice of legal suits can also come via certified or express mail from the court to your business. It's safest not to expect a formal service (“you’ve been served…”) directly or in-person.
2. Get in communication with trusted legal counsel. Once you’ve been served, you face an 'answer deadline' of between 21-28 days depending on the court involved with your case. That brief window means you need to call your in-house legal agent or outside employment counsel as soon as you’ve been made aware of the lawsuit. With their guidance, you can analyze the situation for inconsistencies in the claim. Missing the response deadline could be detrimental to your defense in court, so make sure to ask for extensions if needed. They are generally granted when requested!
3. Suspend routine destruction policies. Contact your IT or HR personnel to halt the destruction of documents, especially those that may be needed to build your defense in the lawsuit. When you’re being sued, you are under an obligation to retain all documents relating to the claim. Routine email or document destruction policies could sabotage your defense and put court rulings in favor of your employee(s). Don’t let a lack of records create a disadvantage.
4. Establish a litigation hold. A litigation hold refers to a written directive for overseers of important documents and electronically-stored records to retain all potentially-relevant documents for your lawsuit. Personal files, pay records, desk files, manager files and medical information are all important to building and maintaining a solid defense. The inclusion of electronically-stored documents like emails, chat histories, instant messages or text messages, and even badge swipes (depending on your industry) can be used to help disprove claims, as well.
5. Contact defendant employees. Contact individuals that have been personally named in the lawsuit to request that they watch for service of the complaint and verify their service date. You may wish to consult your attorney about joint representation (such as if a manager is being sued). Otherwise, the defending member of your workforce may require their own, separate attorney. Take time to communicate with all employees involved in the suit to put them in contact with the right counsel.
6. Build your defense from the inside out. Start compiling all relevant documents and information. Personnel and medical files, wage and hour records, relevant witness lists, and investigation reports are all ways to ensure a robust defense in the court room. As your attorney will also need access to this information, getting ahead of the task will help you avoid unnecessary stress and missed opportunities for a better defense.
Workforce Management to Protect Against Liability
While it’s good to have a response plan when getting sued, it’s also important to try and get to the root of the problem. EPAY’s Human Capital Management system makes certain you have all the necessary data and compliance records readily available to defend yourself. It even has a variety of workforce management capabilities to fight and prevent lawsuits directly.
Our extensive reporting software documents all wage and hour activity, so you can not only monitor critical compliance categories, but disprove unfounded claims before they have a chance to escalate. Check our webinar, “Wage and Hour Litigation on the Rise: Tips for Avoiding Class Action Lawsuits” for a deep dive into the best practices for achieving compliance and avoiding the court room!
Want to see our software’s litigation safeguards up close? Take a tour and request a personalized demo today!