Category Archives: Litigation Issues

Forcing Employees to Litigate in One State, Quirky Question # 153

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?


U.S. Supreme Court Finds Disparate Impact Claims Timely

U.S. Supreme Court Finds Disparate Impact Claims Timely Years After City Adopts Original Employment Practice

By: Sarah Evans

The U.S. Supreme Court has issued a ruling that may create additional liability for employers whose policies have a disparate impact upon minorities.  On May 24, 2010, in Lewis v. City of Chicago, 560 U.S. _____ (2010), the Court held that a disparate impact discrimination claim may arise not only from the adoption of an employer policy which has a disparate impact upon individuals in a protected class, but also in all future implementations of the practice covered by the policy.  With recent studies exposing the potential disparate impact of common employer policies, such as using social media for background checks and recruiting, this case may have a far-reaching effect.


Reviewing Employee’s Email, Quirky Question # 144

Quirky Question # 144:

I’m confused.  I thought we could review our employee’s email communications when sent out on our company’s equipment.  Our electronic communications policy states clearly that we reserve the right to do so.

I also thought we could review even privileged communications between our soon-to-be ex-employee and his attorney, if these communications were sent on our email system.  I’m now being advised that we cannot do so.  Can you offer any guidance? Answer→

The Lovable Litigator: Employment Litigation Truths from the Secret Inner Life of Judges and Juries

The Lovable Litigator

By:  Judge Lloyd Zimmerman

“See you in court!”

Those dreaded words by the soon-to-be-ex employee, screamed out with red face and eyes bulging, as the workplace door finally swings behind him (but not quite hard enough, you think), marking the end of years of careful documentation of  irritating, boorish, and downright scandalous behavior.  Yes, this is the employee you finally fired after the entire office refused to come into work and threatened to go to the newspapers, if he remained another day.

The threat leaves one with a visceral sensation, much like waking up in the morning and facing an early dental appointment for a root canal; for others, the words convey a sinking feeling, a premonition that one is about to enter a labyrinth never to emerge – except  poorer, fatigued, and worse for wear.  To the trained employment law litigator, or the human resources manager, the words leave one wary:  What happens in the “day in court”? Answer→

Criminal Conduct by Executive, Quirky Question # 113

Quirky Question # 113:

We recently discovered that one of our executives opened up a joint checking account in a different state in both his name and the name of the Company.  The Company is a privately held company doing business in 40 states.

The employee opened up this “joint checking account” without the Company’s knowledge or consent.  This employee has direct contact with many of our customers and has convinced some of them to deliver checks for select purchases directly to him.  Delivering checks directly to an employee (even an executive) is a direct violation of Company policy which requires that all payments be mailed to a lock box identified on the invoice.  The employee is cashing those checks in his “joint checking account.”  He is then using some of the money to finance his lavish lifestyle, and the rest to create unauthorized product programs for customers to stimulate business and make his numbers look higher, and thereby increase his compensation.  The employee has been doing this for several years, and the scheme appears to get bigger every year which is why he has been able to hide it for so long.  He uses some of the extra money he gathers each year to pay off customers in prior years.  It appears at this point that customers are out of pocket in excess of $1.5 million, and the employee has spent all of the money he misappropriated except for $50,000.

Customers are starting to raise questions.  Since the employee was acting in direct violation of Company policy and it appears he was doing so only to benefit himself, the Company does not have any liability for his conduct?  Right?  What options should the Company consider? Answer→

Searching a Former In-House Counsel’s Computer, Quirky Question # 111

Quirky Question # 111:

We fired one of our in-house counsel.  He now has sued us for a variety of claims, all of which we think are bogus.  At the time his employment ended, we required him to turn in his company-owned computer.  We are reviewing it and finding that it contains a treasure trove of information useful to our defense of his case.  First, it contains evidence that corroborates our justification for the discharge decision – he just was not competent.  Second, it contains his ruminations about his litigation strategy, as well as  memos he prepared for his own lawyer regarding his potential claims.  Given that he composed all of these memos on his company-issued computer and left the memos on the computer when he departed, we assume that we can access and use this material?  Any problems with our assumption? Answer→

Stray Remarks, Quirky Question # 108

Quirky Question # 108:

We are a communications company in Colorado.  We recently terminated a sales employee for poor performance and he has since filed a charge against our company claiming his termination was the result of age discrimination.  In support of his charge, the former employee alleges that over a year ago he overheard the president of the Company say “I’ll be happy when they get rid of some of these old geezers – the younger ones make less mistakes.”  The former employee asserts that this statement is indicative of discrimination at our company and will likely want to introduce it as evidence if the case goes to trial.  The president in our Company does not make any direct hiring or termination decisions, nor is his approval required for hiring or termination of employees – these decisions are made solely by the direct managers of each department in which the respective employee works.  In this case, the president did not oversee the former employee, did not review the employee and, most importantly, did not participate in any way in the decision to terminate employee.  In fact, he did not even find out about the termination until the day after the employee was informed of the termination.  Further, the president completely denies making the statement.

Will the former employee be able to introduce evidence of the statement at trial to prove discrimination? Answer→

Reporting Charge to Another Company, Quirky Question # 105

Quirky Question # 105:

I am a senior manager with a manufacturing company based here in Minnesota.  Several months ago, we received a job application for an open position from an employee of a vendor with whom we work quite closely.  We did not select that person for the open position and he filed a Charge of age discrimination against our company with the EEOC.

A few weeks after the Charge was filed, I happened to get a call from a friend of mine at this vendor.  I mentioned that their employee had filed a Charge against us.  The next thing I knew, the vendor fired the employee.  Then, the employee filed another Charge against our company with the EEOC.  How can this be? Answer→

Guest Article: Jury Deliberations in Recessionary Times

The Anticipated Recession-Driven Increase in Employment Litigation:  What impact on jury decision making?

By:  John D. Gilleland, PhD

The legal news is replete these days with predictions of a coming rise in employment related litigation – stemming largely from the terminations, layoffs, and furloughs taking place throughout the workplace spectrum as employers cope with these harsh economic times.  But to a jury consultant the real issue is, “to what end?”  That is, what will jurors do when these cases finally come before them at trial, and will these upcoming cases somehow be treated any differently (by jurors) than the ordinary run of the mill pre-economic crisis employment dispute?

One possible answer can be extrapolated from what we already know about jurors and their reactions to employment disputes.  Over the years our research teams have identified a number of commonalities in what jurors sitting on employment cases attend to, and where they are virtually guaranteed to focus their attention in deciding whether the conduct of the defendant (and the plaintiff) justifies a finding of liability and/or damages.  As one might expect, these commonalities focus on both parties in the dispute, as the jurors strive to decide if wrongdoing has occurred. Answer→

Guest Article, Forensic Psychiatric Evaluations of Emotional Distress Claims, Part 2


Barbara Long, M.D., Ph.D., A.B.P.N.
Employment law Title VII claims often include claims of significant emotional distress allegedly caused by inappropriate remarks, touches, and other behaviors in the workplace.  When a supervisor, as opposed to a coworker, has been the alleged instigator of the reportedly offensive behavior, emotional distress claims are frequently enhanced because of the “power differential” between the supervisor and supervisee.  Evaluating the validity of such emotional distress claims can be challenging.  This paper, which is Part 2 of a series on Evaluating Emotional Distress Claims, will describe how expert psychiatric forensic consultation can assist in determining which claims may have merit and which may be false, the ultimate determination to be made by the trier-of-fact.