When a company gets sued, HR is involved early and often—right up until the end of the litigation.
Adam Rosenthal, an attorney with Sheppard Mullin in San Diego and Los Angeles, shared ways that HR can help employers win cases during his session on June 13 at the SHRM Annual Conference & Expo 2023 in Las Vegas.
Initial Steps
After the company gets a letter from a plaintiff's attorney saying the company is being sued, HR should take five actions with the company's attorney, Rosenthal said:
- Clarify HR's role in the investigation and defense of the lawsuit.
- Request assistance with a "litigation hold," which may involve more than just preserving e-mails. It may encompass preserving even texts, Slack messages and videos.
- Establish preferences regarding communications with in-house and outside counsel to maintain the attorney-client privilege.
- Decide whether leadership would like an early and privileged investigation and assessment. HR has the opportunity to provide leadership with a candid assessment of the situation, the individuals involved and any concerns they have with the case going forward.
- Determine if counsel believes HR could have made better or different decisions.
Rosenthal also shared the mechanics of maintaining attorney-client privilege, including:
- Concluding each correspondence with counsel by asking for their legal advice.
- Affixing proper headings to an e-mail that is intended to be subject to the privilege.
- Keeping the communication confidential and...
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