Q. An ex-employee who we fired just filed anlawsuit against us. In addition to our company, he also named as co-defendants the HR, benefits and plant managers, along with me, the president and CEO. We believe the employee was legally terminated. Is there any risk in having our corporate attorney represent all of the defendants in the lawsuit?
A. Federal statutes such as the FMLA, Fair Labor Standards Act and Equal Pay Act, as well as Ohio’s employment discrimination statute, provide for personal liability for supervisors and managers. This individual liability has significant implications for how employers litigate these cases.
If supervisors, managers or executives are named in a lawsuit, you and your attorney need to determine quickly whether the individuals can be represented by the same lawyer as the company, or if there is a conflict. A conflict might arise, for example, when one of the named individuals went rogue and took an action contrary to company policy.
This issue is complicated when an individual has left your organization. It’s exponentially more complicated when the departure was on bad terms.
If one attorney is going to represent more than one defendant, all those jointly represented should waive any potential conflicts in writing. Additionally, the individuals should check their own personal insurance policies (such as homeowners’ insurance) to see if they have applicable coverage.