Post Authored by Max Barack
It is an exciting development when a young lawyer brings in their first client. But bringing in the client is only the beginning step. There are several steps you should take upon being retained by your employment law client. These steps will help you perform better investigation into your client’s case early on, and to protect and advocate on your client’s behalf as the case moves forward. These are a series of “dos” and “don’ts” both for you and your client.
As the attorney:
1.Get all relevant documents from your client right away. Make sure that your client provides you with all relevant documents up-front. If your client is alleging they were harassed, make sure that you have copies of any written complaints that your client made to management. Similarly, be sure that you know about any problems that your case has. If your harassment client has a long disciplinary record, it is better to know that ahead of time so you can properly prepare for that.
2. Do as much front-end investigation as you can. Find out whether your client has any favorable witnesses, documents, or other evidence. If your client has a government employer, you may be able to utilize the Freedom of Information Act to obtain information prior to filing a lawsuit and obtaining discovery. Use the tools at your disposal early so you know as much as possible about your case before filing a lawsuit or charge of discrimination.
3. Lock in witnesses. If your client has witnesses who will testify or speak on their behalf, make sure to get their names and contact information right away. If they are willing to speak with you, consider obtaining signed declarations or affidavits early on. Be careful to make sure that you are permitted to speak with the witnesses. If the witnesses are in Human Resources or are supervisors, you may not be allowed to speak with them.
4. Obtain your client’s personnel records. The Personnel Records Review Act, 820 Ill. Comp. Stat. 40 et seq., requires employers of a certain size to, upon request, permit the employee to inspect their personnel file. It is a good practice to have a standard form that your firm uses to make such requests. You can have your clients sign an authorization form upon retaining your services. Obtaining the personnel records will allow you to inspect their file for any favorable, or unfavorable, information about your client. It ensures that when it comes time to file a charge of discrimination or a lawsuit, you will be able to argue that your client’s job performance was not a justification for whatever discrimination they suffered, and you are less likely to be surprised as the case moves forward.
5. Secure all evidence in you and your client’s possession. Make sure that your client is informed, both verbally and in writing, about their duty to preserve all relevant evidence. Make sure that you secure all electronic evidence – social media, email, text messages, and voicemails – in a forensically acceptable manner.
6. Take steps to ensure the employer is also preserving evidence. When you issue your request for your client’s personnel records, another good step to take is to issue a litigation hold or document preservation letter. This letter should inform your client’s employer of its duty to preserve evidence. It should also identify the types of evidence you believe exists, and the necessary steps to preserve them. For example, if you believe there are security tapes depicting an incident in your case, your letter should instruct the employer to cease all regular destruction of security footage. Your letter should also identify the likely dates that the video depicting your evidence took place, so that the employer can take necessary steps to preserve the relevant footage. Similarly, if there are emails to or from certain supervisors, those supervisors should be identified by name, and your letter should instruct to preserve all relevant emails.
7. Set expectations for your client. Communication is key. Your client needs to understand that while you represent them and will be working to help resolve their employment matter, you are not a magician. Their case may take some time to resolve, and may get worse before it gets better. They should understand that their situation will not be resolved immediately.
There are also several things your client must do as you advocate on their behalf. You advise your client of the following when they retain your services:
1. Do not quit your job without speaking to your attorney. There is an impulse for some employment law clients to immediately remove themselves from their difficult employment situation. But often, your client’s best leverage comes from their continued employment. Once your client has undertaken protected activity – complaining about discrimination, filing a charge of discrimination, or the like – any retaliation that their employer enacts, such as firing them, is sure to be met with you filing an additional charge of discrimination for retaliation. Your client must understand that quitting their job without first discussing it with you can harm their case and will serve as an unpleasant surprise for you.
2. Toe the line. If your client remains employed, then they need to understand that just because they have an attorney, does not mean they no longer need to follow the rules at work. They still cannot lie to their employer or violate company policy. Illinois remains an at-will employment state. Most employees can still be fired with or without cause without consequence to the employer.
3. Mitigate damages. If your client has already been fired, they must be made aware of their duty to mitigate damages. If part of their claim is for being unlawfully fired, then they need to be actively looking for work and keeping records of their work-search activities.
4. Do not file for disability without speaking to your attorney. This is similar to the client’s duty to mitigate damages. Most employment law claims have a lost wages component. However, if an employee is disabled, they are not able to work, and their lost wages claim will be limited. Make sure your client understands this.
5. Do not file for bankruptcy without speaking to your attorney. Failing to report your employment law case/claims in your bankruptcy petition can have serious negative consequences for you. If you are contemplating filing for bankruptcy, contact a bankruptcy attorney and make sure they understand that you have an ongoing employment case.
5. Perhaps most importantly, remain in contact. It is important that your client understands their own responsibilities with respect to their case. Often, you will need to reach your client on short notice when there are developments in the case. Make sure that your client understands that they have a duty to keep their contact information up-to-date, and to remain in contact with you.
These “dos” and “don’ts” will not eliminate every problem for you and your client. They will, however, ensure that you and your client are on the same page when it comes to your respective responsibilities, and that you can avoid unpleasant surprises as you work to advocate on your client’s behalf.
About the Author:
Max is a plaintiff-side civil rights employment lawyer. He has worked at Favaro & Gorman, Ltd. since January 2017. He represents victims of sexual, racial, national origin, age, and disability harassment, discrimination, retaliation, wage theft, and whistleblowers. Max has given presentations on the difficulties and best practices for handling social media and other forms of electronic discovery in litigation and Illinois employees’ workplace privacy rights. He has extensive experience with electronic discovery in the context of civil rights cases. He has performed in-depth research on and helped write an article on the rights of public employees. He is a member of the National Employment Lawyers Association (NELA) Illinois Chapter, the Illinois State Bar Association, the Chicago Bar Association, and the Decalogue Society. Max speaks Spanish and represents Spanish-speaking plaintiffs in a variety of employment-related cases.
Max grew up in the Chicago area. He graduated from Chicago-Kent College of Law in 2013, where he was a member of the Moot Court Honor Society and served on student government. Previously, he attended the University of Michigan and graduated with honors and a bachelor’s degree in history. He still lives in Chicago.