Plaintiff's Attorney

What Will Your Employee's Attorney Ask?

By Charles W. Pautsch, Esq.

When an employee (or ex-employee) visits an attorney’s office to explore the possibility of legal action against the employer, the attorney often begins by giving him/her a questionnaire to complete. The questionnaire is designed to unearth information on various potential causes of action against the defendant employer. Following are sample questions from a typical plaintiff’s questionnaire, along with our comments on the relevance of each question.

How many people does the business employ?

This number is significant because certain statutes have minimum employee requirements. For example, in order to file a Title VII discrimination action against an employer, the company must have 15 or more employees.

Are you a member of a union?

If the employee belongs to a union, his/her claim may need to be presented through the union and filed as a grievance under the collective bargaining agreement. If the union fails to take action, the employee may sue the union for breach of the duty of fair representation as part of his/her lawsuit against the employer.

Do you have an employment contract?

To ascertain if an employment contract existed for non-union employees, the employee’s attorney will examine many aspects of the employment relationship. Because employment contracts may be written, oral or implied, the attorney will seek considerable information in this area in order to decide whether the employee may pursue legal action based on "breach of employment contract."

To help establish a contractual employment relationship, the attorney will ask about the existence of the following:

• An employee handbook or manual
• Written work rules
• A letter offering employment
• Collective bargaining agreement

The attorney may ask the employee whether the employer made any promises or representations to him/her at time of hiring, and whether or not any of these promises were put in writing. Although a written contract for employment provides strong support for a "breach of the employment contract" lawsuit, certain verbal promises made by employers may be used to establish an "implied contract" of employment and the basis for a breach of employment contract lawsuit.

Employees are bringing more employment contract lawsuits, and winning increasingly larger judgments. Employers should scrutinize their practices to avoid making contractual commitments they do not intend to fulfill. This area is of vital concern for employers.

Do you believe you were discharged for refusing to perform an illegal or unethical act?

Do you believe you were discharged for exercising rights you believe to be protected by law?

Do you believe you were discharged for reporting unethical or illegal conduct at work to management or to public authorities?

Did you ever report safety violations by your employer to the Occupational Safety and Health Administration (OSHA)?

Were you discharged after filing a worker’s compensation claim?

If the employee answers "yes" to any of the above questions, he/she may have a cause of action against the employer for "retaliatory discharge." The attorney may then be able to support a claim that the employee was fired unjustly while exercising rights protected under the law, such as "whistleblowing" activities. A retaliatory discharge lawsuit, because of the large amounts of punitive damages which the employee may collect, can have serious adverse consequences for the employer.

Is the employer a federal contractor?

This question is used to help the attorney decide which laws apply to his/her client’s situation. The attorney asks the above question to determine if federal laws regarding certain aspects of employment may apply.

Conclusion

Although the above questions are only a few samples taken from a plaintiff’s questionnaire, they serve as common examples of the many issues an employee’s attorney will examine in preparing employment-related legal action against an employer. Understanding the types of information the plaintiff’s attorney may seek from the employee and the reasons for these requests should help employers fortify themselves more effectively against such lawsuits.

Posted 11/14/1997