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Attorney’s letter? Proceed with plans, but back up decision

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in Discrimination and Harassment,Employment Law,Human Resources,Leaders & Managers,Performance Reviews

Employees who realize their jobs are in peril sometimes think pulling out the “lawsuit card” will save them. They’ll meet with an attorney, who will try to head you off with a threatened lawsuit.

It sometimes succeeds because it casts the potential discharge in a sinister new light—as retaliation for threatening to sue. Here’s how to counter it and still carry through with your planned action:

  • Review the employee’s file and make sure any documentation is rock-solid. For example, if this is part of a scheduled reduction in force (RIF), check that the employee’s inclusion is based on criteria you already set, such as past performance appraisals and other objective measures.
  • Run the attorney’s letter by your own counsel to review your decision with a fresh eye.

Recent case: Lucinda Allen, who held an associate’s degree, worked for Advanced Digital Information Corp. until she was discharged as part of a RIF. She was chosen in part because her education was deemed insufficient for the company’s new business strategy.

Allen had complained about sex discrimination around the time the RIF was being planned. She contacted an attorney about her options. After telling Allen she was being axed, the company suggested another option: a long-term leave of absence to get more education.

After Allen and the company started discussions, her attorney sent a letter promising a sex discrimination lawsuit. Five days later, the company told Allen her job would remain cut. She sued, alleging retaliation.

The court allowed the lawsuit to proceed, viewing the recanted leave option as suspicious. A jury will decide if it was related to the letter promising a lawsuit. (Allen v. Advanced Digital Information Corporation, No. 5:02-CV-1265, ND NY, 2007)

Final note: The company’s mistake may have been back-tracking from its earlier decision just long enough for the attorney to send that letter.

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