I hope this doesn’t run afoul of the proscription regarding asking for legal advice. If it does, I suppose the thread will get locked and I will be dragged off to the SMDB Gulag for reconditioning.
Anyway, this is in regards to a friend of mine who is in an interesting situation. I am simply trying to find out which direction I need to point my friend.
I acknowledge that y’all are not my lawyer and that anything said here would fall under the general category of just shooting the breeze over an adult beverage or two. Nothing said here will be taken as legal advice.
My friend lives and works in Oregon. He was the manager of a particular business and was ordered to terminate an employee. He did so, and the employee retaliated with a wrongful termination lawsuit. Both the company and my friend were named in the lawsuit.
Up to now, my friend’s company had been paying his legal fees, but recently, the lawyer told my friend that he had not been getting paid and would thus be quitting the case. My friend is now under the impression that he must either come up with the money for the lawyer or represent himself.
Is any of this “normal”? That is, if a company is being sued and one of its employees is named in the lawsuit, is it normal for that employee to be forced to pay for his or her representation?
I can see where, in the case of an employee doing something ooky with another employee (e.g.: a sexual harassment suit), then the cost of representation would fall on the employee to defend him or herself. However, in this situation, the employee was doing his job, and was told to terminate the employee.
I’m just wondering about all of this so I can figure out the best direction to send my friend for real, actual, legal help.
Your friend needs his own lawyer, the company lawyer is looking out for the company, not your friend. If the company decides to throw your friend under the bus to save its own ass, your friend is in deep shit.
If the termination is actually illegal, your friend may not be protected by “I was ordered to”
This isn’t a nice situation, but I am not surprised by it.
The dirty little secret of the law is that if you don’t want to get screwed, you need money. You definitely want representation in a civil suit, you want the best lawyer you can get, and you’ll need lots of money to accomplish this.
Your friend may have not done anything wrong. He can still be sued. He’ll probably win, but his chances are slim if he doesn’t get a lawyer to represent him. The former employee’s lawyer probably thinks that, if nothing else, they can get a settlement from the company and from your friend.
I’m not a lawyer, but if I were in the same situation as your friend, I’d make copies of every memo he was sent. Then I’d find a good lawyer with experience in defending wrongful termination suits, and I’d take great pains to arrange a way to pay the lawyer. The key points being a) find a good lawyer and b) deal with the money up front. Lawyers like to get paid (who doesn’t), and I observe that they deal with lots of problems by threatening to quit. That may not strike you as nice, but there it is.
I don’t know the law, but I have a sinking feeling that drachillix is right; your friend may not be legally protected here. The best he may be able to do is argue that he wasn’t aware that what he was doing was illegal, if it was, and then blame the company. Of course, if he does that, he’s out of a job. Better that than losing every penny he has.
I will echo the recommendation that your friend get his own lawyer ASAP. Not the company lawyer. That’s a conflict of interest.
If your friend was given written instructions to terminate that employee, then his lawyer should have made a motion for dismissal immediately to try to get his name off the suit. It’s iffy whether it would work, but there’s a very good risk/reward ratio on that move.
Disclaimer: I am not a lawyer. The closest I’ve come to your friend’s specific situation is when I had to terminate a manager at a company I co-founded (this is back in the mid-80s). She sued for sexual discrimination, claiming she was only terminated because she was female. We had one (count 'em, one) sit-down with the lawyers and the judge and showed that our management team was over 1/3 women and our total workforce was over 1/2 women – far above industry average in electronics back then. The case was dismissed on the spot.
When you sue someone it’s normal to sue EVERYONE involved. Then you eventually hit one right.
Usually a strongly worded letter from a lawyer stating that if the lawsuit continues you will countersue for a frivilous lawsuit or something along that lines and expect that person to pay for your court costs and lawyer fees will quickly cause the person suing to drop you from the case.
That is unless the lawyer suing you feels he can win.
The thing is lawyers who do these cases for th most part, are not interested in winning a case. They are interested in settling. Companies have insurance to cover it to a point and lawyers on retainers.
It’s so easy to give someone a few thousand dollars and agree to pay unemployment than it is to make him go away.
I worked for several large companies and when things like this happen if it goes to court the company never lost. Lawyers pretty much know what they’re gonna get away with. If they think they can lose they’ll settle.
Long answer, usually companies will cover the cost of the defense of their employees as it is in their interest to do so. If someone does something crazy and completely goes off the reservation that’s different, and a conflict of interest can exist. Companies are legal fictions, and only exist due to statute. They are made liable due to the actions of their employees, agents and directors. Thus, to avoid liability it’s in their interest to have their employees be found not liable. I would concur to be cognizant of your own interests when being represented by a company lawyer, but you should realize that it is in their interest for you not to be found liable so that they in turn are not liable.
IMHO, this is the best remark so far. It’s the company who terminated the employee, not your friend. In other words, it’s business, not personal.
It shouldn’t be too late to make a motion to dismiss the action against your friend, but only a local lawyer could advise or act on that. I’d suggest that even a half-hour consultation with such a lawyer could answer that question; and if the answer is “yes,” then that lawyer could make the motion for your friend. It would cost a few dollars, but would certainly be far fewer dollars than time spent in negotiations, or going to trial.
IAAL, but I am not your lawyer, nor am I licensed to practice in your jurisdiction. For legal advice specific to your friend’s situation, have him seek it from a competent and licensed lawyer in his jurisdiction.
Initial consultations are cheap – sometimes free – and get real, concrete answers. Even in cases where I don’t want to bring in a lawyer, I’ll often do a consultation with one just to make sure.
What the OP has not stated is whether or not his friend was told the reason for the termination.
If he was told to fire the person because his superior couldn’t stand people of whatever ethnic group the firee was he would surely be in a much worse position than if he had simply been told to issue the relevant paperwork.
And if he had been told to dismiss the worker and the grounds he was given were legal but it was later determined that the person ordering the dismissal was, in fact, doing it for completely different, illegal, motives, then would he not be in the same position as a secretary who simply typed the dismissal letter?
Nitpick: The fact that the company is paying for the friend’s legal defense is not necessarily an indication either that the friend is being represented by a company lawyer or that the company and the friend are being represented by the same lawyer. It is common for companies of a certain size to have insurance policies that pay for a separate outside counsel for directors, officers, or managers named in a lawsuit against the company.
IANAL but… Part of the discussion should center around what the company’s obligation to the employee are. Unless the employee was acting beyond his authority, with malice, or knew (ought to have known) that his actions were not legally correct, then (a) the lawsuit should be dismissed against him, and (b) the company should cover all costs. If the company had promised to cover costs (or somehow indicated it would) and now is failing to, then this seems to be an indication that they should be covering the costs. S
Speak to a real lawyer to understand what can be covered and recovered. Be sure to have copies of everything at home, in case things get nasty at work. A company that can fire someone in such a way that they sue, doesn’t pay their lawyer(s), etc. may resort to other interesting tactics. Also don’t get so deep into the costs that you are left holding the bag for an expensive lawyer if the company does the kamikaze defence. (“Go ahead and sue… we’re broke.”) Be sure to suggest if/when things get nasty that if they pull that, you will go after the board of directors and the executives personally (it works for the fired guy).
An executive cannot hide behind corporate skirts if they made deliberate decisions that were not ethical or not simply part of their job.
This is the policy at my company as well. I think the OP said that his friend has his own lawyer. The problem is that the Company is not paying the legal bills.
Your friend should talk to his supervisor and inquire as to why the Company is stopped paying the legal bills. As they have been paying them previously, it may just be an administrative oversight, that can be quickly corrected.
As to whether or not the company should be paying the bills or reimbursing the employee for his costs. Normally, if you are a continuing employee and sometimes even if you were terminated, the company will pay the employees legal costs. It depends upon the company policies. Does the employee have a legal basis for reimbursement? That you need to seek an attorney for advice.
Thank you all for the responses. I have spoken with my friend and received some more background. As far as I can tell, the person’s ethnicity never came into the equation, so the wrongful termination is based on other issues. I don’t know all the issues. I will probably point him to this thread and let him read your responses.
Tom Tildrum, you are correct on the nitpick, and Wilbo523, I will suggest that to my friend.
Wombat, thank you for allowing the discussion even though it might have skated close to the boundaries. I appreciate your moderation in moderating, as well as for your insightful responses.
Fairly standard in Company cases to sue both the company and the individual who made the impugned decision. And it is fairly standard for companys to have counsel for just this purpose. A large company often has rules for this sort of thing and has outside counsel. Tell your friend to talk to the concerned people.