Roy’s Analysis of Quirky Question # 155, Privilege Issues
Quirky Question # 155: A class action discrimination lawsuit was filed against our company. The proposed class included all African American employees who were employed during a specified time period. This group includes our former Vice President of Human Resources. We learned recently that the plaintiffs’ lawyers have met on several occasions with our former VP of HR. This troubles us since he was involved in numerous attorney-client privileged communications, both with in-house and outside counsel. Moreover, the early discovery that plaintiffs’ counsel served suggests that they have seen any number of documents that we generated to help us evaluate our workforce, our staff reductions, and whether there was any evidence of discrimination in our treatment of employees. Is it legit for the plaintiffs’ law firm to meet with our former VP of HR, even if he is in the protected class they are trying to represent?
Roy’s Analysis: Disappointingly, the problem you describe is not as rare as it should be. There are times when one of your former employees, including someone who has been privy to attorney-client communications, also is a member of a protected class. When a class action is commenced that encompasses that former employee, the stakes are raised.
In most instances, your former employee will respect the fact that the information to which he/she had access was privileged. They will understand that the privilege belongs to the corporation and requires that confidentiality be maintained. In some situations, however, your former employee may not be quite so respectful of his/her obligations to your company and may not maintain the confidentiality mandated by the attorney-client privilege. When a former employee like that meets an attorney willing to exploit the privileged information for that employee or for a class of similarly situated employees, you have a problem. Read more
Employment Trivia Game
If you quoted Ezekiel prior to performing your job responsibilities, what job would you have? Name the movie, the lead actors, and the director. What was the outcome the first time this occurred in the movie and what was the outcome the second time?
The first person to provide these answers will win an astonishing prize. Good luck! Roy
Reasonable Accommodation for Absent Employee? Quirky Question # 154
[Readers: It's the first Wednesday of the month so it's time for one of our West Coast Quirky Questions. Tune in next Wednesday for the analysis from one of our colleagues in our Southern California office. Regards, Roy]
One of our manufacturing employees, call him Jim, was fairly seriously injured in an accident on the production floor. Jim applied for workers’ compensation and was examined by a doctor. The doctor let us know that in his opinion, Jim would no longer be able to perform his job, since it required a significant amount of lifting and bending that he was simply no longer physically capable of doing. Rather than taking immediate action based on the doctor’s opinion, we waited. We thought maybe his condition would improve – Jim was a good employee, and we just didn’t want to do anything too hasty.
Meanwhile, we knew Jim was aware of the doctor’s report that he could not return to his job, but he didn’t get in touch with us to contradict it or to tell us he did want to try to return to work if we could find a way to have him do it. Admittedly, we did not try to contact him either. The months passed, and he never did get in touch with us or communicate that he wanted to return. Finally, 8 months later, we decided it was time to terminate him, since he had shown no signs of wanting to come back to work, even if he could. We sent him a letter enclosing the doctor’s report and explaining that we were forced to terminate employment since he could not perform his job, and there was no other job available.
Now Jim is suing us. He claims we did not reasonably accommodate his disability, since we did not engage in an interactive process with him! Do we have any possible defense?
Chambers USA Client’s Guide: 2010 Results Are In!
In 2004, Chambers USA (America’s Leading Lawyers for Business) began publishing its “Client’s Guide,” which includes a state-by-state analysis of law firms, divided into multiple practice areas. In the category of “Employment Law” in Minnesota, Dorsey was listed as one of three “Band 1” firms (Chambers’ highest ranking category), with four of our ten Minnesota partners (Christensen, Ginsburg, Hobbins and Reinhart) receiving individual recognition. As Chambers pointed out, one interviewee observed that “there are no weaknesses in the Department.”
The 2005 edition of Chambers’ text echoed many of the 2004 comments. In 2005, however, Dorsey was listed as the only Band 1 Minnesota firm in the area of employment law. Moreover, in 2005, six of our ten L&E partners (Christensen, Eng, Ginsburg, Hobbins, Raphan and Reinhart) received individual recognition, more than from any other Minnesota law firm.
In 2006, Dorsey maintained its exclusive ranking as Chambers’ only Band 1 employment practice in Minnesota. Again, six of our partners received individual recognition (Christensen, Eng, Ginsburg, Hobbins, Raphan and Reinhart), still more than any other Minnesota firm. As Chambers noted, “This Midwestern giant’s labor and employment team ‘has very few equals’ in Minnesota or even nationwide.” (Emphasis in original.) Read more
Forcing Employees to Litigate in One State, Quirky Question # 153
Our company has independent-contractor consultants in many states. Our headquarters is in Minnesota. We know that we could be sued in any of the states where we have independent contractors, and that many of those states apply their own legal tests to determine whether an individual is an independent contractor or employee. To get a little predictability, and hopefully, minimize our liability, we’d like to include a choice of law provision in our independent contractor agreements designating Minnesota as the controlling law. Will that provision be enforceable if we get sued in a state other than Minnesota?
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