Federal Court docket Says It Is OK To Seek the advice of With Counsel Earlier than Taking Employment Motion – Employment and HR

United States:

Federal court says it’s okay to consult with an attorney before initiating an employment lawsuit

June 10, 2021

Foley & Lardner

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A recent ruling by the U.S. First Circuit Court of Appeals (for Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) investigating employment retaliation reinforces the advisory nature of the attorney-client relationship, including the safeguards associated with it obtain legal counsel prior to litigation. In the case of O’Rourke v. Tiffany and Co. alleged the plaintiff that her former employer retaliated against her for exercising her rights under the Family and Medical Leave Act (FMLA) and discriminated against her for violating the Americans with Disabilities Act (ADA) than her position eliminated. In the background, the employee took FMLA leave for a surgical operation in 2014, whereupon the company allowed her a second leave, even though she had exhausted her FMLA leave. The following year, Tiffany decided to leave the applicant’s position two days before informing Human Resources that she intended to take a 2016 FMLA vacation. Tiffany decided to step out of the employee’s position after internal discussions and consultation with her lawyer.

The First Circuit upheld the Court of First Instance’s decision on behalf of the employer and dismissed both claims, concluding that the employee had provided no evidence that her employer’s decision to remove her position was due to the requisite discriminatory or retaliatory intent was motivated to pursue this claims. In an attempt to raise a judicial question on the question of unlawful intent, Plaintiff pointed out the undisputed fact that Tiffany’s Human Resources Department, having learned of the decision to remove the Plaintiff’s position and plan to take another FMLA vacation, was in evidence , have consulted a lawyer. In the opinion of the employee, the fact that the company sought legal advice could possibly be interpreted as evidence that the company intended to act unlawfully.

The court flatly rejected the plaintiff’s submissions on the grounds that no discriminatory or retaliatory intent on the part of the plaintiff’s employer could be derived from the advice, because “the wise step of obtaining legal advice” was incompatible with an illegal motive. The First Circuit cited, with approval, its earlier ruling on another case, Kouvchinov v Parametric Tech. Corp., in which the court confirmed: “A recruiter faced with a new situation can hardly be held responsible for choosing the advice of a lawyer in that situation.”

The O’Rourke decision provides a practical reminder to all employers that consulting an attorney prior to deciding to terminate an employee can bring meaningful benefits right now and across the board. In addition to avoiding a critical mistake in labor law interventions, speaking with a lawyer in related legal disputes can be beneficial to the employer. Current case law broadly recognizes the practical realities that employers face; However, there is always the potential for missteps.

Once an employee is engaged in a sheltered job, the employment landscape needs to be analyzed to ensure that the employer is legitimately excluded from liability for follow-up action. A case must be properly positioned to avoid the appearance of a pretext. Of the many acts that could establish a discriminatory motive, consulting a lawyer is generally not one. Early – and continuous – advice is the best course of action in taking employment action. As this case shows, engaging legal counsel early on can help protect an employer in the event of a formal dispute.

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.

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