When the Big Bad Wolf is at the Door

August 16, 2018

It’s 10:30 on a Tuesday morning.  You’ve finished the morning Staff Meeting, answered twenty seven emails, checked Facebook and are now sitting down to write some employee reviews.

Then you get it.  A letter from an attorney.  Not your attorney.  An attorney representing the employee you terminated last week.  The employee you fired after his fifth disciplinary violation in six months; the one whose filing error cost you your biggest client; the one wasn’t on time once is two years of employment; the one who spoke disrespectfully to everyone in the office; the one you really should have fired long ago.  Unfortunately, he’s also the one who has an open work comp claim, who also filed for FMLA, and who is a racial minority.  In other words, he’s a member of a “protected class.”

On behalf of her client the attorney is requesting a copy of the employee’s termination notice, copies of any and all policies which you claim the employee violated, a breakdown of the race of all employees hired and fired in the past two years, payment of all wages owed, a copy of the employee’s personnel file, the names of all managers involved in the termination, and the reason for the termination.  She also demands that you have no further contact with her client.  What do you do?

After you’ve calmed down, read letter one more time.  A terminated employee is only entitled to certain information.  Just because the letter is from an attorney, that doesn’t mean that more information should be provided.  At the same time, a demand from a representative of an employee should be treated as a demand from the employee himself.

A terminated employee is entitled to all wages due and payable within 24 hours of demand.  For an hourly worker, this should be easily calculated; for workers on commission, the commissions may not be “payable” until they are calculated in the ordinary course of business.  Any amount certain to be owed must be paid on time.  So honor this request.  The employee is also entitled to the reason for termination in writing but only if the request is made within 15 working days of the termination.  A terminated employee is entitled to review his personnel file once per year for as long as the employer maintains the file and you need to provide a copy within 7 working days after the request.

That’s it all he’s entitled to.

There may be cases where disclosing the rest is appropriate.  However, at this early stage you can assume that anything you share will be used against you.  If there is no filed lawsuit or unemployment action, then this attorney doesn’t have the authority to demand documents.

This attorney is trying to evaluate whether or not she should pursue this matter.  Even if she says she’s drafting a complaint, that’s probably not the case.  Any mistakes in your documentation will serve as blood in the water.  The best thing you can do is show that you know your employment law obligations by delivering only things to which the employee is entitled.

Once you’ve done that, it’s probably time to sit down with an attorney and evaluate the possibility of any liability in the matter.  If your case for termination is strong, you can then package the information and disclose it in such a way as to make the employee and the attorney lose heart.

This information is general in nature and should not be construed for tax or legal advice.



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